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HomeMy WebLinkAboutEIR 2018-0001; ; 2022-0164669: CovenantRECORDING REQUESTED BY AND) WHEN RECORDED MAIL TO: ) City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, California 92008-1989 ) ) ) ) ) DOC# 2022-0164669 111111111111 lllll 111111111111111 IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII Apr 14, 2022 12:21 PM OFFICIAL RECORDS Ernest J. Dronen burg, Jr , SAN DIEGO COUNTY RECORDER FEES $431.00 (S82 Atkins: $75.00) PAGES: 115 Space above this line for Recorder's use Assessor's Parcel Number Portion of 212-040-56 Project Number and Name --------------EI R 2018-000 l /CT 2018-0002/ SOP 2018-0002/ CDP 2018-0005/ HOP 2018-0001/HMP 2018-0001 A viara Apartments DECLARATION OF RESTRICTIVE COVENANTS This DECLARATION OF RESTRICTIVE COVENANTS ("Restrictive Covenant") is made this S n--day of /+tr\ \ , 20 t, 1-by A VIARA LP, a Delaware limited partnership (hereinafter "Declarant"). RECITALS A. Declarant is the developer of that certain real property in the City of Carlsbad, County of San Diego, State of California, commonly referred to as A viara Apartments, EIR 2018- 0001 /CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-0001/HMP 2018-0001 (the "Project"). B. Declarant is the sole owner in fee simple of those portions of the Project, located in the City of Carlsbad, County of San Diego, State of California, and as further described in legal descriptions attached hereto as Exhibit "A" and depicted on Exhibit "8" and attached hereto and incorporated by this reference (the "Restricted Property"), which consists of approximately 1.64 acres. C. Declarant desires to preserve and protect the Restricted Property pursuant to the Preserve Management Plan for the A viara Apartments Preserve prepared by HELIX Environmental Planning, Inc., dated October 2021 ("Management Plan"), an adaptive habitat management plan which may be revised from time to time and which is incorporated herein by this reference. The Management Plan is attached hereto as Exhibit "C". D. Declarant intends to engage San Diego Habitat Conservancy (hereinafter referred to as "SDHC" or "Declarant Assignee"), a California nonprofit public benefit corporation, pursuant to the terms of a separate agreement between Declarant and SDHC. Declarant Assignee shall be responsible for maintaining the entire Restricted Property as identified further herein. This Restrictive Covenant provides mitigation for certain impacts of the Project, pursuant to Assessor's Parcel Number: Portion of212-040-56 Project Number: EIR 2018-000 I /CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-000 I /HMP 20 I 8-000 I Project Name: Aviara Apartments requirements of Condition Nos. 1, 13 and 14 of City of Carlsbad Planning Commission Resolution Nos. 7398 and 7399, dated December 16, 2020. This Restrictive Covenant is intended to and shall be deemed to satisfy such requirements as to the Restricted Property. The amount of sensitive habitat, as well as disturbed habitat and non-native vegetation, to be preserved within the Restricted Property is approximately 1.64 acres. The sensitive habitat consists of Diegan coastal sage scrub and southern willow scrub. E. The Restricted Property possesses wildlife and habitat values of great importance to the People of the State of California and currently is and will remain in a Natural Condition as defined herein and is intended to be preserved in its natural, scenic, open condition to maintain its ecological, historical, visual, and educational values ( collectively, "Conservation Values"). F. The United States Fish and Wildlife Service ("USFWS") has jurisdiction over the conservation, protection, restoration, enhancement, and management of fish, wildlife, and native plants and the habitats on which they depend under the Endangered Species Act, 16 U.S.C. Section 1531 et. seq., the Fish and Wildlife Coordination Act, 16 USC, Section 661-666c and other applicable federal laws. G. California Department of Fish and Wildlife ("CDFW") has jurisdiction, pursuant to Fish and Game Code Section 1802, over the conservation, protection, and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable populations of those species. For these purposes pursuant to California Civil Code Section 815.3, Fish and Game Code Section 1348, and other provisions of California law. H. The City of Carlsbad ("City") is a municipal corporation with a Habitat Management Plan for Natural Communities in the City of Carlsbad ("HMP") adopted by its City Council in November 2004, with the overall goal of contributing to regional biodiversity and the viability of rare, unique, or sensitive biological resources throughout the City and the larger region while allowing public and private development to occur consistent with the Carlsbad General Plan and Growth Management Plan. COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS NOW THEREFORE, Declarant hereby declares the Restricted Property shall be held, transferred, conveyed, leased, occupied or otherwise disposed of and used subject to the following restrictive covenants, which shall run with the land and be binding on Declarant's heirs, successors in interest, administrators, assigns, lessees, or other occupiers and users of the Restricted Property or any portion of it. 1. Purpose. (a) The purpose of this Restrictive Covenant is to ensure the Restricted Property will be retained in perpetuity in a Natural Condition, defined below, and to prevent any use of the Restricted Property that will impair or interfere with the Conservation Values of the Restricted Property (the "Purpose"). Declarant intends that this Restrictive Covenant will confine the use of the Restricted Property to such activities, including without limitation, those involving the 2 Assessor's Parcel Number: Portion of 212-040-56 Project Number: EIR 2018-000 I /CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-000 l /HMP 2018-000 I Project Name: Aviara Apartments preservation and enhancement of native species and their habitat in a manner consistent with the habitat conservation purposes of this Restrictive Covenant. (b) The term "Natural Condition," as referenced in the preceding paragraph and other portions of this Restrictive Covenant, shall mean the condition of the Restricted Property as it exists at the time this Restrictive Covenant is executed, as well as future enhancements or changes to the Restricted Property that occur directly as a result of the following activities: ( l) Habitat creation or restoration, including implementation, maintenance and monitoring activities, required by City's Planning Commission Resolutions No, 7398 and 7399, dated December 16, 2020 for the Project; (2) In-perpetuity maintenance ("Long-Term Maintenance, Management, and Monitoring"), that occurs on the Restricted Property as described in the Management Plan and Section 6 herein; (3) Activities that do not, in the City's sole discretion, interfere or conflict with the Management Plan as required by existing authorized easements; or ( 4) Activities described in Section 4 herein. (c) Declarant certifies to City, CDFW, and USFWS that, to Declarant's actual knowledge, there are no structures or other man-made improvements existing on the Restricted Property. Declarant further certifies to the City, CDFW and USFWS that, to Declarant's actual knowledge, there are no previously granted easements existing on the Restricted Property that interfere or conflict with the Purpose of this Restrictive Covenant as evidenced by the Title Report attached as Exhibit "D". The current Natural Condition is evidenced in part by the depiction of the Restricted Property attached on Exhibit "B", showing all relevant and plottable property lines, easements, dedications, improvements, boundaries and major, distinct natural features such as waters of the United States. Declarant has delivered further evidence of the Natural Condition to City, CDFW, and USFWS by the inclusion in the Management Plan of (I) a color aerial photograph of the Restricted Property at an appropriate scale taken as close in time as possible to the date this Restrictive Covenant is executed; (2) an overlay of the Restricted Property boundaries on that aerial photograph; and (3) on-site color photographs showing all natural features of the Restricted Property. (d) If a controversy arises with respect to the Natural Condition of the Restricted Property, City, CDFW, and USFWS shall not be foreclosed from utilizing any and all other relevant documents, surveys, photographs, or other evidence or information to assist in the resolution of the controversy. 2. Declarant's Duties. (a) To accomplish the Purpose of this Restrictive Covenant as described in Section l above, Declarant shall undertake construction, maintenance and monitoring of the Restricted Property pursuant to the A viara Apartments Project Restoration Plan, prepared by HELIX Environmental Planning, Inc., dated February 2022 {"Restoration Plan") until issuance of that 3 Assessor's Parcel Number: Portion of212-040-56 Project Number: EIR 2018-0001/CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-0001/HMP 2018-0001 Project Name: Aviara Apartments certain written verification by the City that the mitigation effort has been successfully completed pursuant to the applicable conditions of approval ("Final Approval"), after which date SDHC shall be obligated to perform all long-term management and monitoring activities necessary to maintain the Restricted Property in the condition required by the Management Plan. Subject to the foregoing, and all other applicable terms and conditions of this Restrictive Covenant, Declarant, its successors, and assigns shall: ( l) Undertake reasonable actions to prevent the unlawful entry and trespass by persons whose activities would be inconsistent with the Conservation Values and would violate the permitted uses of the Restricted Property set forth in this Restrictive Covenant; (2) Post and maintain signage in or adjacent to the boundary areas of the Restricted Property as described in Section 4(d): (3) Comply with the terms of this Restrictive Covenant and cooperate with City, CDFW, and USFWS in the protection of the Conservation Values; (4) Repair and restore damage to the Restricted Property directly or indirectly caused by Declarant, Declarant's guests, representatives or agents and third parties; provided, however, Declarant, its successors or assigns shall not engage in any repair or restoration work in the Restricted Property without first consulting with City, CDFW, and USFWS pursuant to Section 6; (5) Undertake construction, maintenance, and monitoring of mitigated areas pursuant to the Restoration Plan until Final Approval; (6) Obtain any applicable governmental permits and approvals for any activity or use permitted by this Restrictive Covenant, and any activity or use shall be undertaken in accordance with all applicable federal, state, local, and administrative agency statutes, ordinances, rules, regulations, orders or requirements; (7) Perform in perpetuity Long-Term Maintenance, Management, and Monitoring as set forth in Section 6 below; and (8) Perform an annual compliance inspection of the Restricted Property, prepare an inspection report, and shall make reports available to City, CDFW, and USFWS upon request. (b) Except as required by the Management Plan, Declarant, its successors, and assigns shall not be obligated to maintain or repair any injury to or change in the Restricted Property resulting from: (l) Any natural cause beyond Declarant's control, including without limitation, fire, flood, storm, earth movement, drought, or infestation; or 4 Assessor's Parcel Number: Portion of212-040-56 Project Number: EIR 2018-000 I /CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-000 l /HMP 2018-000 I Project Name: Aviara Apartments (2) Any prudent action taken by Declarant under emergency conditions to prevent, abate, or mitigate significant injury to persons and/or the Restricted Property resulting from such causes. 3. Prohibited Uses. Any activity on or use of the Restricted Property inconsistent with the Purpose of this Restrictive Covenant and not reserved as set forth in Section 4 hereof is prohibited. Without limiting the generality of the foregoing, the following uses by Declarant, and its respective guests, agents, assigns, employees, representatives, successors and third parties, are expressly prohibited, except as otherwise provided herein or unless specifically provided for in the Restoration Plan, Management Plan, and any easements and reservations of rights recorded in the chain of title to the Restricted Property at the time of this conveyance (as set forth in Exhibit "D" hereto): (a) Supplemental watering except for habitat enhancement activities described m Section 4(b }: (b) Use of herbicides, pesticides, rodenticides, biocides, fertilizers, or other agricultural chemicals or weed abatement activities, except weed or pest abatement activities necessary to control or remove invasive, exotic plant or pest species conducted by an applicator licensed to work within habitat preserve areas; ( c) Incompatible fire protection activities, except the fire prevention activities set forth in Section 4(t): ( d) Use of off-road vehicles and use of any other motorized vehicles except on existing roadways, SDG&E personnel within the SDG&E easement, or City personnel within the Carlsbad Municipal Water District easement, and as necessary to restore native plant communities, consistent with Section 4; ( e) Livestock grazing or other agricultural activity of any kind; (f) Recreational activities including, but not limited to, horseback riding, biking, hunting, or fishing, except as allowed in the Management Plan; (g) Residential, commercial, retail, institutional, or industrial uses; (h) Any legal or de facto division, subdivision or portioning of the Restricted Property, except transfers in accordance with Section 17 below; (i) Construction, reconstruction or placement of any building or other improvement, billboard, or signs, except signs permitted in Section 2(a}(2} and Section 4(d}; (j) Depositing, dumping or accumulating soil, trash, ashes, refuse, waste, bio-solids, or any other material; 5 Assessor's Parcel Number: Portion of212-040-56 Project Number: ETR 2018-000 liCT 2018-0002/SDP 20 I 8-0002/ CDP 20 I 8-005/HDP 2018-000 I /HMP 20 I 8-000 I Project Name: Aviara Apartments (k) Planting, introduction or dispersal of non-native or exotic plant or animal species, except for non-native wildlife to allow for the introduction of tested biological control agents; (I) Filling, dumping, excavating, draining, dredging, mining, drilling, removing, or exploring for or extraction of minerals, loam, gravel, soil, rock, sand, or other material on or below the surface of the Restricted Property; (m) Altering the general topography of the Restricted Property, including but not limited to building of roads, trails, except as otherwise provided herein regarding the SDG&E and easement and Carlsbad Municipal Water District easement, and flood control work; (n) Removing, destroying, or cutting of trees, shrubs, or other vegetation, except as necessary for ( l) emergency fire protection as required by fire safety officials as set forth in Section .1:.(f}_, (2) controlling invasive, exotic plants which threaten the integrity of the habitat, (3) preventing or treating disease, (4) completing the Restoration Plan, or (5) activities described in Section 2, Section 4 and Section 13; ( o) Manipulating, impounding or altering any natural watercourse, body of water or water circulation on the Restricted Property, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters; and (p) Fuel modification zones ( defined as a strip of mowed land or the planting of vegetation possessing low combustibility for purposes of fire suppression). 4. Declarant's Reserved Rights. Declarant reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Restricted Property, including the right to engage in or to permit or invite others to engage in all uses of the Restricted Property that are consistent with the Purpose of this Restrictive Covenant, including the following uses: (a) Access. Reasonable access through the Restricted Property to adjacent land over existing roads or easements, or to perform obligations or other activities permitted by this Restrictive Covenant. In addition, police and other public safety organizations and their personnel may enter the Restricted Property to address any legitimate public health or safety matter. (b) Habitat Enhancement Activities. Enhancement and monitoring of native plant communities, including but not limited to Restoration Plan implementation, including the right to plant trees and shrubs of the same type as currently existing on the Restricted Property, so long as such activities do not harm the habitat types identified in the Management Plan. For purposes of preventing erosion and reestablishing native vegetation, the Declarant shall have the right to revegetate areas that may be damaged by the permitted activities under this Section 4, naturally occurring events, or by the acts of persons wrongfully damaging the Natural Condition of the Restricted Property. Habitat enhancement activities shall not be in direct or potential conflict with the preservation of the Natural Condition of the Restricted Property or the Purpose of this Restrictive Covenant and shall be performed in compliance with all applicable laws, regulations, permitting requirements, and Management Plan. 6 Assessor's Parcel Number: Portion of212-040-56 Project Number: EIR 2018-000 I/CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-0001/HMP 20 I 8-000 I Project Name: Aviara Apartments ( c) Vegetation, Debris, and Exotic Species Removal. Removal or trimming of vegetation downed or damaged due to natural conditions or natural disaster, removal of man-made debris, removal of parasitic vegetation (as it relates to the health of the host plant), and removal of non-native or exotic plant or animal species. Vegetation, debris, and exotic plant species removal shall not be in direct or potential conflict with the preservation of the Natural Condition of the Restricted Property or the Purpose of this Restrictive Covenant and shall be performed in compliance with all applicable laws, regulations, permitting requirements, and Management Plan. (d) Erection and Maintenance of Informative Signage. Erection and maintenance of signage and other notification features saying "Natural Area Open Space," "Protected Natural Area," or similar descriptions that inform persons of the nature and restrictions on the Restricted Property. Prior to erection of such signage, the Declarant shall submit detailed plans showing the location of such signs to City for review and approval. The erection and maintenance of informative signage shall not be in direct or potential conflict with the preservation of the Natural Condition of the Restricted Property or the Purpose of this Restrictive Covenant and shall be performed in compliance with all applicable laws, regulations, and permitting requirements. (e) No Interference with Development of Adjoining Property. Notwithstanding anything set forth herein to the contrary, nothing in this Restrictive Covenant is intended nor shall be applied to in any way limit Declarant or any of Declarant's successors and assigns from (I) constructing, placing, installing, and/or erecting any improvements upon the portions of the Project not constituting the Restricted Property, (2) installing and/or maintaining the subsurface infrastructure improvements, utility lines, landscaping (including irrigation and runoff), landscape mitigation, and/or similar non-structural improvements within the Restricted Property, and/or (3) developing adjoining property for any purposes, except as limited by any local, state or federal permit requirements for such development; and provided that for all of the above clauses ( 1 ), (2) and (3) neither such activity nor any effect resulting from such activity amounts to a use of the Restricted Property, or has an impact upon the Restricted Property, that is prohibited by Section 3 above. SDHC is instructed to abide by these Reserved Rights even if inconsistent with the Management Plan. (f) Fire Protection. The right, in an emergency situation only, to maintain firebreaks ( defined as a strip of plowed or cleared land made to check the spread of a fire), trim or remove brush, otherwise perform preventative measures required by the fire department to protect structures and other improvements from encroaching fire. Also, the right to maintain the Diegan Coastal Sage Scrub Restoration-Maintained Low Fuel Native Scrub and Diegan Coastal Sage Scrub Restoration -Maintained 50% Succulent Native Scrub zones shown on Management Plan Figure 5 as described in the Management Plan and the Conceptual Fuel Modification Plan approved by the City of Carlsbad Fire Department on March 29, 2018. All other brush management activities shall be limited to areas outside the Restricted Property. (g) Trail. Notwithstanding anything set forth herein to the contrary, nothing in this Restrictive Covenant is intended nor shall be applied to in any way limit Declarant and/or City from re-grading and maintaining the existing dirt roads within the existing SDG&E utility easement and Carlsbad Municipal Water District easement. 7 Assessor's Parcel Number: Portion of 212-040-56 Project Number: EIR 2018-000 I/CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-000 I /HMP 20 I 8-000 I Project Name: Aviara Apartments (h) Public Utilities. Notwithstanding anything set forth herein to the contrary, nothing in this Restrictive Covenant is intended nor shall be applied to in any way limit the use by SDG&E and Carlsbad Municipal Water District of their existing utility easements as those rights are specifically set forth within Exhibit "D". 5. Access. This Restrictive Covenant does not convey a general right of access to the public or a general right of access to the Restricted Property. In accordance with Section 4(d), Declarant shall install signage at all likely points of entry informing persons of the nature and restrictions on the Restricted Property. This Restrictive Covenant will allow for access to the Restricted Property by City, CDFW, and USFWS and third-party easement holders of record at the time of this conveyance at locations designated in easements and reservations of rights recorded in the chain of title to the Restricted Property at the time of the conveyance. 6. Long-Term Maintenance, Management, and Monitoring. In addition to the other terms contained herein, Declarant, its successor or assign shall be responsible for the maintenance and repair of the Restricted Property in perpetuity in accordance with the Management Plan, which provides, among other things, that Declarant shall only be obligated to undertake the construction, maintenance and monitoring of the Restricted Property until issuance of "Final Approval" (as defined in the Restoration Plan) from the City, after which date SDHC shall be obligated to perform all long-term management and monitoring activities necessary to maintain the Restricted Property in the condition required by the Management Plan. Declarant Assignee shall not be obligated to maintain the informative signage, fencing, or low fuel zones after the date on which the City issues the "Final Approval" as defined in the Restoration Plan. 7. Endowment Declarant shall establish an endowment fund to be held in trust, invested and the interest disbursed therefrom to provide sufficient funds for the perpetual management, maintenance, and monitoring of the Restricted Property as required under this Restrictive Covenant. City, CDFW, and USFWS shall have the right to review and approve the terms of the endowment agreement, and shall be a third party beneficiary of that agreement with the right to review and approve any amendments. (a) Include the following principals of fiduciary duty in the endowment fund agreement: (I) The endowment holder shall have a fiduciary duty to hold the endowment funds in trust for the Restricted Property. (2) The endowment holder shall not commingle the endowment funds with other funds. Funds may be pooled for investment management purposes only. (3) The endowment holder shall have a duty of loyalty and shall not use the endowment funds for its own personal benefit. 8 funds. Assessor's Parcel Number: Portion of212-040-56 Project Number: EIR 2018-000 I /CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-000 l /HMP 2018-000 I Project Name: Aviara Apartments (4) The endowment holder shall act as a prudent investor of the endowment (5) The endowment holder shall not delegate the responsibility for managing the funds to a third party; but may delegate authority to invest the funds with Declarant's oversight. The endowment holder shall act with prudence when delegating authority and in the selection of agents. (6) The endowment holder shall have an annual audit of the endowment performed by a licensed CPA, and shall make the auditor's written report available to City, CDFW, and USFWS upon completion. (7) Endowment funds set aside for the management of the Restricted Property shall not be used to pay any damages for liability due to acts or omissions of the endowment holder or any other party. (b) Declarant may use The San Diego Foundation, in accordance with California law, to be the endowment holder. 8. City, CDFW, and USFWS Rights. To accomplish the Purpose of this Restrictive Covenant, Declarant hereby grants and conveys the following rights to City, CDFW, and USFWS (but without obligation of City, CDFW, and USFWS): (a) A non-exclusive easement on and over the Restricted Property to preserve and protect the Conservation Values of the Restricted Property; and (b) A non-exclusive easement on and over the Restricted Property to enter upon the Restricted Property to monitor Declarant's compliance with and to otherwise enforce the terms of this Restrictive Covenant; and (c) A non-exclusive easement on and over the Restricted Property to prevent any activity on or use of the Restricted Property that is inconsistent with the Purpose of this Restrictive Covenant and to require the restoration of such areas or features of the Restricted Property that may be damaged by any act, failure to act, or any use that is inconsistent with the Purpose of this Restrictive Covenant; and ( d) All present and future development rights allocated, implied, reserved or inherent in the Restricted Property; such rights are hereby terminated and extinguished, and may not be used on or transferred to any portion of the Restricted Property, nor any other property adjacent or otherwise; and ( e) The right to enforce by means, including, without limitation, injunctive relief, the terms and conditions of this Restrictive Covenant. 9 Assessor's Parcel Number: Portion of212-040-56 Project Number: ETR 2018-0001 /CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-000 l /HMP 2018-000 I Project Name: Aviara Apartments 9. Enforcement. (a) Right to Enforce. Declarant, its successors and assigns, grant to City, CDFW, USFWS, Department of Justice, and the State Attorney General, a discretionary right to enforce these restrictive covenants in a judicial or administrative action against any person(s) or other entity (ies) violating or attempting to violate these restrictive covenants; provided, however, that no violation of these restrictive covenants shall result in a forfeiture or reversion of title. The rights under this Section are in addition to, and do not limit rights conferred in Section 8 above, the rights of enforcement against Declarant or Declarant Assignee, their successors or assigns under any related permit covered by the various documents or referred to therein. Declarant or Declarant Assignee will upon receipt from City and/or Agency of a written notice to Declarant or Declarant Assignee ("Notice of Violation") informing Declarant or Declarant Assignee of a violation and demanding cure of such violation, investigate the claim of violation and commence action to cure the violation within 15 days ofreceipt of said Notice of Violation from City and/or Agency. If said cure reasonably requires more than fifteen ( 15) days, Declarant or Declarant Assignee shall, within the fifteen (15) day period submit to City and/or Agency for review and approval a plan and time schedule to diligently complete a cure. Declarant or Declarant Assignee shall complete such cure in accordance with the approved plan. If Declarant or Declarant Assignee disputes the Notice of Violation, the following provisions will apply: (1) Notice of Dispute. Declarant or Declarant Assignee shall issue a written notice of such dispute (hereinafter "Notice of Dispute") to City and/or Agency within fifteen (15) days of receipt of written notice of violation. If Declarant or Declarant Assignee provides City and/or Agency with a Notice of Dispute, as provided herein, City and/or Agency shall meet and confer with Declarant or Declarant Assignee at a mutually agreeable place and time, not to exceed thirty (30) days from the date that City and/or Agency receive the Notice of Dispute. City and/or Agency shall consider all relevant information concerning the disputed violation provided by Declarant or Declarant Assignee and shall determine whether a violation has in fact occurred and, if so, whether the Notice of Violation and demand for cure issued by City and/or Agency is appropriate in light of the violation. (2) Determination of Dispute. If, after reviewing Declarant's or Declarant Assignee's Notice of Dispute, conferring with Declarant or Declarant Assignee, and considering all relevant information related to the violation, City and/or Agency determine that a violation has occurred, City and/or Agency shall give Declarant or Declarant Assignee notice of such determination in writing. Upon receipt of such determination, Declarant or Declarant Assignee shall have fifteen ( 15) days to cure the violation. If said cure reasonably requires more than fifteen ( 15) days, Declarant or Declarant Assignee shall within the fifteen ( 15) day period submit to City and/or Agency for review and approval a plan and time schedule to diligently complete a cure and begin cure. (b) Costs of Enforcement. Any costs incurred by City and/or Agency in enforcing the terms of this Restrictive Covenant against Declarant or Declarant Assignee including, but not limited to, costs of suit and any costs of restoration necessitated by Declarant or Declarant Assignee's violation or negligence under the terms of this Restrictive Covenant shall be borne by Declarant or Declarant Assignee, subject to California Civil Code section 815, et seq. 10 Assessor's Parcel Number: Portion of 2 I 2-040-56 Project Number: EIR 2018-0001/CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-0001/HMP 2018-0001 Project Name: Aviara Apartments ( c) Discretion. Enforcement of the terms of this Restrictive Covenant shall be at the discretion of City and/or Agency. Any forbearance by City and/or Agency to exercise its rights under this Restrictive Covenant in the event of any breach of any term of this Restrictive Covenant by Declarant or Declarant Assignee shall not be deemed or construed to be a waiver by City and/or Agency of such term or of any subsequent breach of the same or any other term of this Restrictive Covenant or of any of the rights of City and/or Agency under this Restrictive Covenant. No delay or omission by City and/or Agency in the exercise of any right or remedy upon any breach by Declarant or Declarant Assignee shall impair such right or remedy or be construed as a waiver. (d) Acts Beyond Responsible Parties' Control. Nothing contained in this Restrictive Covenant shall be construed to entitle any party, person, entity or agency to make any claim or to bring any action against Declarant or Declarant Assignee, their successors and assigns, (individually, "Responsible Party" and collectively, "Responsible Parties"), nor shall a Responsible Party be deemed in violation of its obligations herein, in the event there is any injury to or change in the Restricted Property resulting from (i) any natural cause beyond Responsible Parties' control, including, without limitation, fire not caused by Responsible Parties, flood, storm, earth movement, drought, infestation, or any prudent action taken by Responsible Parties under emergency conditions to prevent, abate, or mitigate significant injury to the Restricted Property resulting from such causes, so long as the Responsible Parties are in compliance with the Management Plan; (ii) Any prudent action taken under emergency conditions to prevent, abate, or mitigate significant injury to persons and/or the Restricted Property resulting from such causes; or (iii) acts by City and/or Agency and their employees, directors, officers, agents, contractors, or representatives. Responsible Parties shall have no obligation to anticipate or attempt to prevent any of the events described in this paragraph except as specifically set forth herein. 10. Limitations on Liabilities. Declarant agrees City, CDFW, and USFWS shall not have any duty or responsibility for the operation, upkeep, or maintenance of the Restricted Property, the monitoring of hazardous conditions thereon, or the protection of Declarant, the public or any third parties from risks relating to conditions on the Restricted Property. Declarant, or its successor or assign (at such times as applicable pursuant to Section 6 above), remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Restrictive Covenant, and any activity or use shall be undertaken in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders and requirements. 11. Taxes. Declarant, or its successors or assigns (at such times as applicable pursuant to Section 6 above), shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Restricted Property, if any, by competent authority, including any taxes imposed upon, or incurred as a result of, this Restrictive Covenant, and agrees to furnish City, CDFW, and USFWS with satisfactory evidence of payment upon request. II 12. Assessor's Parcel Number: Portion of 212-040-56 Project Number: ETR 2018-0001/CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-0001/HMP 2018-0001 Project Name: Aviara Apartments No Hazardous Materials Liability. (a) Declarant represents and warrants that it has no knowledge of any release or threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the Restricted Property. (b) Despite any contrary provision of this Restrictive Covenant, the parties do not intend this Restrictive Covenant to be, and this Restrictive Covenant shall not be, construed such that it creates in or gives City, CDFW, and USFWS any of the following: (1) The obligations or liabilities of an "owner" or "operator," as those terms are defined and used in Environmental Laws (defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.; hereinafter, "CERCLA"); or (2) The obligations or liabilities of a person described in 42 U.S.C. Section 9607(a)(3) or (4); or (3) The obligations of a responsible person under any applicable Environmental Laws; or ( 4) The right to investigate and remediate any Hazardous Materials associated with the Restricted Property; or (5) Any control over Declarant's ability to investigate, remove, remediate, or otherwise clean up any Hazardous Materials associated with the Restricted Property. (c) The term "Hazardous Materials" includes, without limitation, (a) material that is flammable, explosive or radioactive; (b) petroleum products, including by-products and fractions thereof; and ( c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA, the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.); the Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.); the Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.), and in the regulations adopted and publications promulgated pursuant to them, or any other applicable federal, state or local laws, ordinances, rules, regulations or orders now in effect or enacted after the date of this Restrictive Covenant. ( d) The term "Environmental Laws" includes, without limitation, any federal, state, local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials. Declarant represents, warrants and covenants to City, CDFW, and USFWS that activities upon and use of the Restricted Property by Declarant, its agents, employees, invitees and contractors will comply with all Environmental Laws. 12 Assessor's Parcel Number: Portion of 212-040-56 Project Number: EIR 2018-000 I/CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-0001/HMP 2018-000 I Project Name: Aviara Apartments 13. Additional Easements. Other than the SDG&E and Carlsbad Municipal Water District easement utility easements, Declarant shall not grant any additional easements, rights of way or other interests in the surface or subsurface of the Restricted Property ( other than a security interest that is subordinate to this Restrictive Covenant), or grant or otherwise abandon or relinquish any water rights relating to the Restricted Property, without first obtaining the written consent of City, CDFW, and USFWS. City, CDFW, and USFWS may withhold such consent if it determines that the proposed interest or transfer is inconsistent with the Purpose of this Restrictive Covenant or will impair or interfere with the Conservation Values of the Restricted Property. This Section shall not prohibit transfer of a fee or leasehold interest in the Restricted Property that is subject to this Restrictive Covenant and complies with Section 17 below. Declarant, its successors, and assigns shall record any additional easements or other interests in the Restricted Property approved by City, CDFW, and USFWS in the official records of San Diego County, California and provide a copy of the recorded document to City, CDFW, and USFWS. 14. Hold Harmless. Declarant shall hold harmless, protect and indemnify City and its officials, directors, employees, agents, contractors, and representatives and the heirs, personal representatives, successors, and assigns of each of them ( each a "City Indemnified Party" and, collectively, "City's Indemnified Parties") from and against any and all liabilities, penalties, costs, losses, damages, expenses (including, without limitation, reasonable attorneys' fees and experts' fees), causes of action, claims, demands, orders, liens, or judgments ( each a "Claim" and, collectively, "Claims"), arising from or in any way connected with injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Restricted Property, regardless of cause, except that this indemnification shall be inapplicable (and in no event shall Declarant be obligated to indemnify any City Indemnified Party) to the extent any such Claim is attributable to the negligence or misconduct of any City Indemnified Parties. If any action or proceeding is brought against any of City's Indemnified Parties by reason of any such Claim, Declarant shall, at the election of and upon written notice from any of the City's Indemnified Parties defend such action or proceeding with City's counsel reasonably approved by the City Indemnified Party or reimburse the party for all reasonable charges actually incurred for services, including attorneys' fees, in defending the action or proceeding. Notwithstanding the foregoing, Declarant's agreement to indemnify the City's Indemnified Parties pursuant to this Section 14 is not intended to and shall not relieve any insurance carrier of its obligations applicable to the Claims. 15. Amendment. Declarant may amend this Restrictive Covenant only after written concurrence by City, CDFW, and USFWS. Any such amendment shall be consistent with the Purpose of this Restrictive Covenant and shall not affect its perpetual duration. Declarant shall record any amendments to this Restrictive Covenant approved by City, CDFW, and USFWS in the official records of San Diego County, California, and shall provide a copy of the recorded document to City, CDFW, and USFWS. 13 16. Assessor's Parcel Number: Portion of212-040-56 Project Number: EIR 2018-000 I/CT 20 I 8-0002/SDP 2018-0002/ CDP 20 I 8-005/HDP 2018-000 I /HMP 20 I 8-000 I Project Name: Aviara Apartments Recordation. Declarant, its successor, or assign shall promptly record this instrument in the official records of San Diego County, California, and provide a copy of the recorded document to City, CDFW, and USFWS. 17. Assignment and Subsequent Transfers. (a) Declarant agrees to incorporate the terms of this Restrictive Covenant in any deed or other legal instrument by which Declarant divests itself of any interest in all or a portion of the Restricted Property. Declarant, its successor or assign agrees to ( l) incorporate by reference to the title of and the recording information for this Restrictive Covenant in any deed or other legal instrument by which each divests itself of any interest in all or a portion of the Restricted Property, including, without limitation, a leasehold interest and (2) give actual notice to any such transferee or lessee of the existence of this Restrictive Covenant. Declarant, its successor, or assign agrees to give written notice to City, CDFW, and USFWS of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. If an interest in all or a portion of the Restrictive Property is transferred to any party other than Declarant Assignee, consent of City, CDFW, and USFWS is required. City, CDFW, and USFWS shall provide such consent within thirty (30) days of receiving written notice of intent to transfer. Failure to respond within thirty (30) days by City, CDFW, or USFWS shall be deemed as consent to the transfer from the agency or agencies failing to timely respond. Any subsequent transferee shall be deemed to have assumed the obligations of this Restrictive Covenant and to have accepted the restrictions contained herein. The failure of Declarant, its successor or assign to perform any act provided in this Section shall not impair the validity of this Restrictive Covenant or limit its enforceability in any way. (b) From and after the date of any transfer of all or any portion of the Restricted Property by Declarant and each transfer thereafter, ( 1) the transferee shall be deemed to have assumed all of the obligations of Declarant as to the portion transferred, as set forth in this Restrictive Covenant, (2) the transferee shall be deemed to have accepted the restrictions contained herein as to the portion transferred, (3) the transferor, as applicable, shall have no further obligations hereunder except pursuant to Section 24, and (4) all references to Declarant in this Restrictive Covenant shall thereafter be deemed to refer to such transferee. 18. Notices. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and be served personally or sent by first class mail, postage prepaid, addressed as follows: To Declarant: Aviara LP 3444 Camino Del Rio N, Suite 202 San Diego, CA 92108 Attention: Dennis Dszuberla Telephone: (619) 285-5500 14 Assessor's Parcel Number: Portion of212-040-56 Project Number: ETR 2018-0001/CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-0001/HMP 2018-0001 Project Name: Aviara Apartments To Declarant Assignee: To: San Diego Habitat Conservancy 2900 Fourth Avenue, Suite #200 San Diego, CA 92103 Attention: Executive Director Telephone: (619) 365-4839 City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 California Department of Fish and Wildlife, Region 5 3883 Ruffin Road San Diego, CA 92123 US Fish and Wildlife Service 2177 Salk A venue, Suite 250 Carlsbad, CA 92008 or to such other address as either party shall designate by written notice to the other. Notice shall be deemed effective upon delivery in the case of personal delivery or, in the case of delivery by first class mail, five (5) days after deposit into the United States mail. 19. Controlling Law. The laws of the United States and the State of California shall govern the interpretation and performance of this Restrictive Covenant. 20. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Restrictive Covenant shall be liberally construed in favor of the deed to effect the purpose of this Restrictive Covenant and the policy and purpose California Civil Code Section 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Restrictive Covenant that would render the provision valid shall be favored over any interpretation that would render it invalid. 21. Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Restrictive Covenant, such action shall not affect the remainder of this Restrictive Covenant. If a court of competent jurisdiction voids or invalidates the application of any provision of this Restrictive Covenant to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances. 15 22. Assessor's Parcel Number: Portion of212-040-56 Project Number: EIR 2018-000 I/CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-0001/HMP 20 I 8-000 I Project Name: Aviara Apartments No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Declarant's title in any respect. 23. Successors. The covenants, terms, conditions, and restrictions of this Restrictive Covenant shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Restricted Property. 24. Termination of Rights and Obligations. A party's rights and obligations under this Restrictive Covenant terminate upon transfer of the party's interest in the Restrictive Covenant or Restricted Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 25. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. 26. City, CDFW, and USFWS as Benefited Parties Except for Section 23, the terms of this Restrictive Covenant are for the benefit of City, CDFW, and USFWS only and are not for the benefit of any other parties. 16 Assessor's Parcel Number: Portion of212-040-56 Project Number: EIR 2018-0001/CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-0001/HMP 2018-0001 Project Name: Aviara Apartments IN WITNESS WHEREOF Declarant has executed this Restrictive Covenant the day and year first above written. "Declarant" A VIARA LP, a Delaware limited partnership By: Aviara Genpar, LLC, a Delaware limited liability company, its General Partner -;,,,-c-_,.-t Management Corporation, a California corporation, its Manager Name: Scott Dale Title: President Date: ~ / S / 2022-T I "Declarant Assignee" hereby approves of the terms of this Restrictive Covenant Name: __ I)~l ~i".,._'>·""'--'-)~>t,;t~! ~~·-___ _ Title: ___ &_·)(~..c;~' ,---~"'-1 ..... ,~· J~L--~U~r.._L~t,~¾~•-"_ Date: __ i_J_i~)_·:::2-_::Z-. _____ _ See Attached Notary Acknowledgment Certificate 17 Assessor's Parcel Number: Portion of212-040-56 Project Number: EIR 2018-0001 /CT 2018-0002/SDP 2018-0002/ CDP 2018-005/HDP 2018-000 I /HMP 2018-000 I Project Name: Aviara Apartments CITY OF CARLSBAD APPROVED AS TO FORM: CELIA A. BREWER, City Attorney By:~ Assistant City Attorney 18 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of dA~ Dte..:..o } On Ae~lC-s: Zo22. before me, LE.sci PALl\11~ ~TAte-'::f ,=,uauc... ' Date Here lnsertt10me and Title of the Officer personally appeared ____ ..S._--'c,o~--'1"_T--'---_I)=--...,_A--'-=L....,,E~------------------- Name(!) of 5igner(,J who proved to me on the basis of satisfactory evidence to be the person(tj whose namer,) is/a,:e,subscribed to the within instrument and acknowledged to me that he/&-ReAl'ley executed the same in his/heF.4he+r authorized capacity(ie5), and that by his/1:te1hl 1et1 signature(.t) on the instrument the personr,), or the entity upon behalf of which the personr,) acted, executed the instrument. J: 00,: e e •L~Ll~A~E; e e f ~ i ""' ~ Notary Public • California i ~ ;;; San Diego County I ~ Commission # 2309925 - .~,• My Comm. Expires Oct 21, 2023 Place Notary Seal and/or Stamp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of ched Document Title or Type of Docum Signer(s) Other Than Named Above: ___ .....::::,,-...::--------------------- Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's □ Corporate Officer -Title(s): ______ _ □ Corporate □ Partner -□ Limited □ General □ Partner -□ □ Individual □ Attorney in Fact □ Individual orney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guar or Conservator □ Other: □ Other: Signer is Representing: _________ _ Signer is Representing:----------'--- ©2018 National Notary Association Callfomla All-Purpose Certificate of Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Sa iA 'DreeJo S.S. On Lf J ':t / 2<., 1-2-before me, t',. 1 CbH4 a tJi el Fu t lu--14., e dlt f N DTIY!:1 /J',t fol, .v Name of Notary Public Title 7 U personally appeared ___ D.,,L--10 ...... rv'-=-_S___;;:c.o=--'-l-=e'--$"'-___________ _ N;ime of Signer ( 1 l Name ot Signer (2) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sh~xecuted the same in his/he~authorized capacity(ies), and that by his/he~ignature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ~ ~ Sign, tur~ of Notary Public NATHANIEL FULLER KNECHT COMM . #2371986 z Notary Public • California ! San Diego County ... M Comm. Ex ires A . 23, 2025 Seal OPTIONAL INFORMATION ------------ Although the mformat10n m this sectton 1s not reqwred by law ,t could prevent fraudulent removal and reattachment of I/us acknowledgment to an unauthorized document and may prove useful to persons retying on the attached document Description of Attached Document The preceding Certificate of Acknowledgment is attached to a documen titled/f the purpose of Decla.,a;:b'o rJ "'1 '4Shu'c. 1Je U>1te-N4,vt.s containing J.J_ pages, and dated ~ / '! /?,o ~'2- The signer(s) capacity or authority is/are as: D lndividual(s) D Attorney-in-fact D Corporate Officer(s) _____________ _ T,tle(s) D Guardian/Conservator D Partner -Limited/General D Trustee(s),. □ Other: uee.ufLVt. O,rt.yttr a/\!. Boo..d. V,re{,·~+ representing: ~So.n, ~~ ltttkiraf fatJ ~e,Q.va"~ ')O< 1 Ne l, L I ( '114 A I Riqltt Rt , Y ,r I trth t Additional Information Method of Signer Identification Proved to me on the basis of satisfactory evidence: D fonn(s) of identification D credible witness(es) Notarial event Is detailed in notary Journal on: Page#__ Entry# __ Notary contact: _________ _ Other D Additional Signer D Signer(s) Thumbprints(s) □------------- ,f tt11 r, fro• JlJ w l ~11£ " wWV' hE Not I) ,, EXHIBIT A Legal Description of Restricted Property EXHIBIT "A" CONSERVATION EASEMENT (LOT 1) THAT PORTION OF LOT "G" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SHOWN AND DESCRIBED AS PARCEL 3 OF THAT CERTAIN CERTIFICATE OF COMPLIANCE RECORDED SEPTEMBER 27, 1985 AS DOCUMENT NO. 85-359769 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST EASTERLY CORNER OF LOT 61 OF CITY OF CARLSBAD TRACT 95-05 EMERALD RIDGE EAST, IN SAID CITY, COUNTY AND STATE, ACCORDING TO MAP THEREOF NO. 13482, FILED IN THE OFFICE OF SAID COUNTY RECORDER ON OCTOBER 10, 1997, ALSO BEING THE SOUTHWESTERLY CORNER OF SAID PARCEL 3; THENCE ALONG THE NORTHEASTERLY LINE OF SAID LOT 61, ALSO BEING THE SOUTHWESTERLY LINE OF SAID PARCEL 3, NORTH 17°49'20" WEST (RECORD NORTH 17°49'48" WEST PER SAID MAP 13482), 436.62 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE OF LOT 61 AND SAID SOUTHWESTERLY LINE OF PARCEL 3, NORTH 72°10'40" EAST, 11.14 FEET; THENCE SOUTH 51 °36'01" EAST, 5.51 FEET; THENCE SOUTH 85°20'00" EAST, 6.99 FEET TO THE BEGINNING OF NON- TANGENT 66.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 20°52'54" EAST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 19°26'09" A DISTANCE OF 22.39 FEET; THENCE NORTH 49°40'57" EAST, 6.08 FEET; THENCE NORTH 72°10'40" EAST, 443.23 FEET; THENCE SOUTH 63°57'40" EAST, 7.22 FEET; THENCE NORTH 72°10'40" EAST, 35.88 FEET; THENCE NORTH 63°54'17" EAST, 9.92 FEET TO A POINT ON THE SOUTHERLY BOUNDARY OF CARLSBAD MINOR SUBDIVISION NO. MS 01-08 KELLY CORPORATE CENTER, IN SAID CITY, COUNTY AND STATE, ACCORDING TO 1 of 2 SB&O INC &ii1l1J. Job No.76582.00 D:\76582 Aviara Apts\05 Survey\Legals\Conservation Esmt-Lot 1 /egal.docx PARCEL MAP THEREOF NO. 19207, FILED IN THE OFFICE OF SAID COUNTY RECORDER ON APRIL 9, 2003, ALSO BEING THE NORTHERLY LINE OF PARCEL 3 OF SAID CERTIFICATE OF COMPLIANCE. THENCE ALONG SAID SOUTHERLY BOUNDARY AND SAID NORTHERLY LINE NORTH 83°09'29" WEST, 17.04 FEET TO THE BEGINNING OF A NON-TANGENT 800.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 06°48'39" EAST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22°51'18" A DISTANCE OF 319.12 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 16°02'39" WEST; THENCE NON-TANGENT TO SAID CURVE SOUTH 73°58'22" WEST, 218.15 FEET TO THE NORTHEAST CORNER OF SAID LOT 61, ALSO BEING THE NORTHWEST CORNER OF SAID PARCEL 3. THENCE ALONG SAID NORTHEASTERLY LINE OF LOT 61, SOUTH 17°49'20" EAST, 82.79 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 0.765 ACRES, MORE OR LESS. ATTACHED HERETO IS EXHIBIT "B" AND BY THIS REFERENCE MADE A PART HEREOF. THIS PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS ACT. SB&O INC Job No.76582.00 DATE 2 of 2 Aviara D:\76582 Aviara Apts\05 Survey\Legals\Conservation Esmt -Lot 1 legal.docx EXHIBIT "A" CONSERVATION EASEMENT (LOT 2) THAT PORTION OF LOT "G" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SHOWN AND DESCRIBED AS PARCEL 3 OF THAT CERTAIN CERTIFICATE OF COMPLIANCE RECORDED SEPTEMBER 27, 1985 AS DOCUMENT NO. 85-359769 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER OF LOT 61 OF CITY OF CARLSBAD TRACT 95-05 EMERALD RIDGE EAST, IN SAID CITY, COUNTY AND STATE, ACCORDING TO MAP THEREOF NO. 13482, FILED IN THE OFFICE OF SAID COUNTY RECORDER ON OCTOBER 10, 1997, ALSO BEING THE SOUTHWESTERLY CORNER OF SAID PARCEL 3; THENCE ALONG THE NORTHEASTERLY LINE OF SAID LOT 61, ALSO BEING THE SOUTHWESTERLY LINE OF SAID PARCEL 3, NORTH 17°49'20"' WEST (RECORD NORTH 17°49'48" WEST PER SAID MAP 13482), 305.03 FEET; THENCE LEAVING SAID NORTHEASTERLY LINE OF LOT 61 AND SAID SOUTHWESTERLY LINE OF PARCEL 3, SOUTH 45°26'01" EAST, 21.95 FEET; THENCE SOUTH 46°33'45" EAST, 101.31 FEET; THENCE SOUTH 47°52'17" EAST, 25.71 FEET; THENCE SOUTH 17°38'58" EAST, 21.38 FEET; THENCE SOUTH 51 °36'42" EAST, 34.68 FEET; THENCE SOUTH 60°56'32" EAST, 22.83 FEET; THENCE SOUTH 17°49'08" EAST, 53.57 FEET TO THE BEGINNING OF A 60.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 64°15'00" A DISTANCE OF 67.28 FEET TO A POINT ON THE SOUTHEASTERLY LINE OF SAID PARCEL 3; THENCE ALONG SAID SOUTHEASTERLY LINE SOUTH 72°10'40" WEST, 140.52 FEET TO THE POINT OF BEGINNING. SB&O INC Job No. 76582.00 1 of 2 ~ D:\76582 Aviara Apts\05 Survey\Legals\Conservation Esmt -Lot 2 legal.docx CONTAINING 0.508 ACRES, MORE OR LESS. ATTACHED HERETO IS EXHIBIT "B" AND BY THIS REFERENCE MADE A PART HEREOF. THIS PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS ACT. DATE 2 of 2 SB&O INC &ial.s!. Job No.76582.00 D:\76582 Aviara Apts\05 Survey\Legals\Conservation Esmt-Lot 2 legal.docx EXHIBIT "A" CONSERVATION EASEMENT (LOT 5) THAT PORTION OF LOT "G" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SHOWN AND DESCRIBED AS PARCEL 3 OF THAT CERTAIN CERTIFICATE OF COMPLIANCE RECORDED SEPTEMBER 27, 1985 AS DOCUMENT NO. 85-359769 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF CITY OF CARLSBAD MINOR SUBDIVISION NO. 05-21, IN SAID CITY, COUNTY AND STATE, ACCORDING TO PARCEL MAP THEREOF NO. 20219, FILED IN THE OFFICE OF SAID COUNTY RECORDER ON MARCH 7, 2007, ALSO BEING THE SOUTHEASTERLY CORNER OF SAID PARCEL 3; THENCE ALONG THE SOUTHWESTERLY BOUNDARY OF SAID PARCEL MAP, ALSO BEING THE NORTHEASTERLY LINE OF SAID PARCEL 3, NORTH 14°09'49" EAST (RECORD NORTH 14°09'58" EAST PER SAID PARCEL MAP), 114.38 FEET TO THE NORTHEAST CORNER OF SAID PARCEL 3; THENCE LEAVING SAID SOUTHWESTERLY BOUNDARY ALONG THE NORTHERLY LINE OF SAID PARCEL 3, NORTH 80°58'20" WEST, 34.80 FEET TO THE TRUE POINT OF BEGINNING, ALSO BEING THE BEGINNING OF A NON- TANGENT 271.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 64°06'41" EAST; THENCE LEAVING SAID NORTHERLY LINE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 17°37'23" A DISTANCE OF 83.35 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 46°29'18" EAST; THENCE NON-TANGENT TO SAID CURVE NORTH 63°24'42" WEST, 6.35 FEET; THENCE SOUTH 43°35'59" WEST, 2.48 FEET; THENCE NORTH 63°38'27" WEST, 32.61 FEET; THENCE SOUTH 26°34'03" WEST, 9.61 FEET; THENCE NORTH 63°31'25" WEST, 36.83 FEET; THENCE NORTH 27°33'41" WEST, 12.77 FEET; 1 of 2 SB&O INC tlliilliJ. Job No.76582.00 D:\76582 Aviara Apts\05 Survey\Legals\Conservation Esmt -Lot 5 tegal.docx THENCE NORTH 71 °49'20" WEST, 326.98 FEET TO POINT ON THE EASTERLY SIDELINE OF AVIARA PARKWAY AS DEDICATED PER THAT CERTAIN FINAL ORDER OF CONDEMNATION RECORDED APRIL 10, 2000 AS DOCUMENT NO. 2000-0180600, ALSO BEING THE BEGINNING OF A NON-TANGENT 1,349.00 FOOT RADIUS CURVE CONCAVE EASTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 84 °39'42" WEST; THENCE NORTHEASTERLY ALONG SAID EASTERLY SIDELINE AND THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 00°02'52" A DISTANCE OF 1.13 FEET TO A POINT ON SAID NORTHERLY LINE OF PARCEL 3, A RADIAL LINE TO SAID POINT BEARS NORTH 84°36'50" WEST; THENCE ALONG SAID NORTHERLY LINE NON-TANGENT TO SAID CURVE SOUTH 80°58'20" EAST, 443.09 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 0.369 ACRES, MORE OR LESS. ATTACHED HERETO IS EXHIBIT "B" AND BY THIS REFERENCE MADE A PART HEREOF. THIS PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS ACT. SB&O INC Job No. 76582. 00 DATE 2 of 2 ~ D:\76582 Aviara Apts\05 Survey\Legals\Conservation Esmt -Lot 5 legal.docx EXHIBIT B Plat Map SITE t z 2l ( ) P.O.C. T.P.O.B. EXHIBIT 77877 R(JAD VICINITY MAP NOT TO SCALE LEGEND IND/CA TES CONSERVATION EASEMENT AREA = 0. 765 ACRES, MORE OR LESS IND/CA TES RECORD DA TA PER MAP 13482. IND/CA TES POINT OF COMMENCEMENT INDICATES TRUE POINT OF BEGINNING SHEET 1 OF 2 SHEETS BB&D~ PLANNING ENGINEERING SURVEYING PiYi 19207 PARCEL 4 --------------- PARCEL 1 t>1 N17'49'48"W I 1YlAP 15482 I L1 L2 N72'10'40"E 35.88' S63'57'40"E 7.22' 1\;JAP 825 POR. PCL G LINE DATA BEARING LENGTH N72'10'40"E 11.14' S51'36'01"E 5.51' LJ S85'20'00"£ 6.99' L4 N49'40'57"E 6.08' CURVE TABLE DEL TA RADIUS LENGTH Ct 19'26'09" 66.00' 22.39' CDC 1985_.559789 PARCEL 5 ~/ 60/ OJ<::::, I ~I rt-I ~0/ L4 ~ I ,":JI _; ,'0"v I P. 0. C. -----~ I E'L Y MOST CNR LOT 61 Ct ~ MAP 13482 ----I ------===-LJ SHEET 2 OF 2 SHEETS S19.4/:36.62' 11 _____ ,, BB c, _~c_uz· S19.41) ~ T.P. 0.8. PLANNING ENGINEERING SURVEYING SITE t Z d ( ) P.0.8. EXHIBIT 778 77 ROi\[J VICINITY MAP NOT TO SCALE LEGEND INDICATES CONSERVATION EASEMENT AREA = 0.508 ACRES, MORE OR LESS INDICATES RECORD DATA PER MAP 13482. IND/CA TES POINT OF BEGINNING SHEET 1 OF 2 SHEETS BB&D~ PLANNING ENGINEERING SURVEYING \ \ 1\;J.AP 15482 B1 \ EXHIBIT 778 77 1'y/.AP 825 POR. PCL G C) t.c) II • - CDC 1985_,559789 PARCEL 5 P.0.8. £'LY MOST CNR LOT 61 MAP 13482 S47"52'17"£ 25.71' S17"49'08"£ 53.57' -----.:. b=64·15•00" R=60.00' L=67.28' ROS 8848 SHEET 2 OF 2 SHEETS SB&D~ PLANNING ENGINEERING SURVEYING f z 2l ( ) 0 0 0 ® 0 P.O.C. T.P.0.8. EXHIBIT SITE LEGEND IND/CA TES CONSERVATION EASEMENT AREA = 0.369 ACRES, MORE OR LESS :,:, 8 :,:, VICINITY MAP NOT TO SCALE IND/CA TES RECORD OR CALCULATED DA TA PER PARCEL MAP 20219. IND/CA TES EXISTING PUBLIC STREET AND PUBLIC UTILITY EASEMENT PER FINAL ORDER OF CONDEMNATION RECORDED 4/10/2000 AS DOC. NO. 2000-0180600, O.R. IND/CA TES EASEMENT OF RIGHT-OF-WAY FOR AERIAL AND UNDERGROUND UTILITY PURPOSES GRANTED TO SDG&E PER DOCUMENT RECORDED 8/14/1957 AS DOC. NO. 122214, O.R. IND/CA TES WATER PIPELINE EASEMENT GRANTED TO CARLSBAD MUNICIPAL WATER DISTRICT PER DOCUMENT RECORDED 12/28/1961 AS FILE/PAGE NO. 233207, 0.R. IND/CA TES EXISTING SLOPE EASEMENT PER FINAL ORDER OF CONDEMNATION RECORDED 4/10/2000 AS DOC. NO. 2000-0180600, O.R. IND/CA TES EXISTING TEMPORARY CONSTRUCTION EASEMENT PER FINAL ORDER OF CONDEMNATION RECORDED 4/10/2000 AS DOC. NO. 2000-0180600, O.R. INDICATES POINT OF COMMENCEMENT INDICATES TRUE POINT OF BEGINNING SHEET 1 OF 2 SHEETS BB&D~ PLANNING ENGINEERING SURVEYING C1 C2 C3 C4 CURVE TABLE DELTA RADIUS 17°37'23" 271.00' 45·11·21" 271.00' 28·39'58" 271.00' 0-02'52" 1349.00' PiYi 2993 PDR. PCL D LENGTH 83.35' 218.94' 135.59' 1.13' ---- ~ p]yj 20219 T.P.0.8. N64·o6'4~w~L__ ---.................... L1 L2 L3 L4 L5 L6 L7 CDC 1985-J3597B9 PARCEL 3 LINE DATA BEARING LENGTH N63"24'42"W 6.35' S43"35'59"W 2.48' N63.38'2rw 32.61' s25·34•03"w 9.61' N63"31'25"W 36.83' N27'33'41"W 12.77' s80·58'2o"E 34.80' SHEET 2 OF 2 SHEETS SB&I I~ PLANNING ENGINEERING SURVEYING EXHIBIT C Preserve Management Plan Laurel Tree Aviara Project Preserve Management Plan October 2021 Prepared for Aviara, LP 3444 Camino Del Rio North San Diego. CA 92108 HELIX Environmental Planning Prepared by HELIX Environmental Planning, Inc. 703 Palomar Airport Road. Suite 200 Carlsbad, CA 92011 THIS PAGE INTENTIONALLY LEFT BLANK LAUREL TREE AVIARA PROJECT PRESERVE MANAGEMENT PLAN Prepared for: Aviara, LP 3444 Camino Del Rio North San Diego, CA 92108 Prepared by: HELIX Environmental Planning, Inc. 703 Palomar Airport Road, Suite 200 Carlsbad, CA 92011 October 2021 THIS PAGE INTENTIONALLY LEFT BLANK Section Laurel Tree Aviara Project Preserve Management Plan TABLE OF CONTENTS 1.0 INTRODUCTION .................................................................................................................. 1 1. 1 Purpose of the Preserve Management Plan ...................................................................... 1 1.2 Background ....................................................................................................................... 1 1.3 Preserve Manager ............................................................................................................. 3 2.0 PRESERVE DESCRIPTION ............................................................................................... 3 2.1 Geographical and Regional Setting .................................................................................. 3 2.2 Preserve Boundaries and Historic/Current Land Use ....................................................... 4 2.3 Geology, Soils, and Hydrology ........................................................................................ 4 2.4 Ownership and Legal Description .................................................................................... 4 2.5 Existing Easements ........................................................................................................... 4 2.6 Restrictive Covenant Compliance .................................................................................... 5 3.0 HABITAT AND SPECIES DESCRIPTION ....................................................................... 5 3 .1 Vegetation Communities .................................................................................................. 5 3.2 Plant Species ..................................................................................................................... 6 3.3 Wildlife Species ................................................................................................................ 7 3.4 Wildlife Corridors and Linkages ...................................................................................... 7 3.5 Fire History ....................................................................................................................... 7 3.6 Threats .............................................................................................................................. 8 4.0 MANAGEMENT AND MONITORING ............................................................................. 9 4.1 Biological Goals and Tasks .............................................................................................. 9 4.2 Public Use Goals and Tasks ........................................................................................... 13 4.3 Fire Management ............................................................................................................ 13 4.4 Constraints to Implementing ASMDS ............................................................................ 14 4.5 Potential Impacts oflmplementing ASMDS .................................................................. 14 5.0 ADAPTIVE MANAGEMENT ........................................................................................... 15 TABLE OF CONTENTS (cont.) Section Title 6.0 ADMINISTRATION AND REPORTING ........................................................................ 16 6.1 Annual Reports and Preserve Management Plan ........................................................... 16 6.2 Data management ........................................................................................................... 17 6.3 Communication and Coordination ................................................................................. 17 6.4 Budget/Endowment Management .................................................................................. 17 6.5 Operations and Staffing .................................................................................................. 18 7.0 REFERENCES ..................................................................................................................... 19 LIST OF APPENDICES A Plant and Animal Species Observed B Special Status Species Potential to Occur C High and Moderate Category Invasive Plants D Laurel Tree A viara Preserve Estimate for Long-term Management LIST OF FIGURES No. Title Follows Page I Regional Location ................................................................................................................ 4 2 Aerial Photograph ................................................................................................................ 4 3 USGS Topography ............................................................................................................... 4 4 Proposed HMP Preserve ...................................................................................................... 4 5 Proposed HMP Preserve Restoration, Maintenance, Conceptual Fencing, and Signage .... 6 LIST OF TABLES Vegetation Communities ..................................................................................................... 5 ll 1.0 INTRODUCTION 1.1 PURPOSE OF THE PRESERVE MANAGEMENT PLAN The purpose of this Preserve Management Plan (PMP) is to document the long-term management, monitoring, and reporting directives for approximately 1.6 acres of biological open space associated with the Laurel Tree A viara Project (project) located in the City of Carlsbad (City), California. The 1.6 acres of the biological open space is herein referred to as the Laurel Tree A viara Preserve (preserve). Implementation of the PMP will help ensure that the preserve is managed in perpetuity consistent with the overarching reserve assembly requirements and management directives of the regional Multiple Habitat Conservation Program (MHCP), Carlsbad Open Space Management Plan (OSMP, TAIC 2004), and Carlsbad Habitat Management Plan (HMP; City 2004). Specifically, the PMP is intended to accomplish the following: • Meet the requirements for environmental documentation to comply with state and federal statutes and regulations; • Identify required personnel qualifications for implementing management goals and objectives; • Serve as a budget planning aid for annual budget preparation; • Provide an overview of the preserve's management goals and objectives, as well as specific directives for the protection and management of native habitat and wildlife; • Summarize existing data on the native habitat, plants, and wildlife that occur or have the potential to occur within the open space; and • Outline appropriate public uses of the preserve and its resources. 1.2 BACKGROUND The PMP has been prepared in accordance with the mitigation measures and conditions of approval for the project's Biological Resources Letter Report (HELIX 2018a). Specifically, mitigation measure BIO-2 from the Biological Resources Letter Report states: "The project applicant shall record tlvo types of easements: an open space easement that will be recorded on the final map, and a conservation easement or restrictive covenant that ·will be recorded by the County of San Diego. The easements shall be recorded over those portions of the property identified as biological open space. Prior to issuance of a grading permit or clearing of vegetation, the project applicant shall prepare a Restoration Plan for the revegetation of the temporary impact areas and proposed creation/substantial restoration areas within the preserve ivith coastal sage HELIX Enllimnmentall'lanning ------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 scrub. The Restoration Plan shall include five years of maintenance and monitoring to ensure the restoration e;ffort is successful. The project applicant shall prepare a pe1petual management, maintenance, and monitoring plan (Preserve Management Plan, PMP) according to the standards contained in Section F.2 of the HMP, Volume 2 and 3 of the MHCP and the citywide open space management plan for the on-site biological conservation easement or restrictive covenant areas. The PMP shall include area specific management directives for treatment of non-native invasive plant species within the project's open space, in addition to those required to meet HMP adjacency standards. The initial treatment of non-native invasive plant species shall occur within the first year following issuance of grading permit, and periodically thereafter, according to a schedule approved by the City and as fimding allows. The applicant shall also establish a non-wasting endowment for an amount approved by the City based on a Property Analysis Record (PAR; Center for Natural Lands Management 2008) or similar cost estimation method to secure the ongoing fimding for the pe,petual management, maintenance, and monitoring of the biological conservation easement area by an agency, non-profit organization, or other entity approved by the City. Upon approval of the draft PMP, the applicant shall submit the final PMP to the City and a contract ivith the approved land manager, as well as transfer the fimds for the non-wasting endowment to a non-profit conservation entity. The project applicant shall install appropriate permanent fencing, such as three-strand smooth-wire fencing, along the bounda,y of the open space to discourage human access and allow wildlife to move through unobstructed. The project applicant shall also install signage on the fence to educate and inform the public about the open space and to prohibit access. The fencing shall be shown on all final project plans. Prior to recordation of the final map, issuance of a grading permit or clearing of any habitat or vegetation, whichever occurs first, the following items shall be submitted to the City and approved as final by the City Planning Director or designee: Recordation of Conservation Easement, Mitigation Plan (habitat restoration), Preserve Management Plan/PAR, long-term management fimding, Management Agreement with qualified preserve management. The project applicant has agreed to implement the measures for preserve management, recordation of a protective instrument, installation of fencing and signage, preparation and implementation of this PMP, and establishment of an endowment. HELIX Environmental Planning-------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 2 1.3 PRESERVE MANAGER San Diego Habitat Conservancy will be the Preserve Manager for the preserve. Mr. Don Scoles, who will be the San Diego Habitat Conservancy (SDHC) manager for this site, meets all of the requirements of a Preserve Manager. The contact information for Mr. Scoles is: Mr. Don Scoles San Diego Habitat Conservancy 2900 Fourth Avenue, Suite #200 San Diego, CA 92103619-365-4839 SDHC@sdhabitat.org 2.0 PRESERVE DESCRIPTION 2.1 GEOGRAPHICAL AND REGIONAL SETTING The approximately 1.6-acre Laurel Tree A viara preserve is generally located in the central portion of the City of Carlsbad in northern San Diego County, California (Figure 1, Regional Location). More specifically, the site occurs north of Laurel Tree Lane, south of Palomar Airport Road, and east of Hidden Valley Road at the existing Lily's Enterprise wholesale florist at 1205 Aviara Parkway (Figure 2, Aerial Photograph). The site is situated within an unsectioned portion of the Agua Hedionda land grant, in the Encinitas, California U.S. Geological Survey 7.5-minute quadrangle map (Figure 3, USGS Topography). In the context of the adopted Carlsbad HMP, the project site itself is located within Local Facilities Management Zone (LFMZ) 5, with existing HMP Hardline designations overlaying the Encinas Creek corridor off-site to the immediate north, and slope areas off-site to the immediate west. LFMZ 20 occurs to the immediate south and west of the site, with portions overlapping the southern and western edges of the preserve. The site itself is located outside of the HMP Focus Planning Area (i.e., Cores, Linkages, and Special Resource Areas), and is, therefore, not within a Proposed Hardline or Standards Area. The site is also located within the Coastal Zone, as identified in the certified Carlsbad LCP. The bioregion that generally defines the area is influenced by a coastal Mediterranean climate. The area's climate, coupled with coastal geological formations and land features, gives rise to an array of habitat types and species that are unique to coastal southern California. Although past agricultural practices and urbanization have resulted in the conversion of land within much of the region, habitat blocks and linkages of undeveloped land occur amongst existing developments that provide important habitat for plant and animal species that reside and migrate to and from the area. Larger habitat blocks exist on steep-sloping land and in and around the three coastal lagoons that occur within Carlsbad: Agua Hedionda Lagoon, Batiquitos Lagoon, and Buena Vista Lagoon. Additional undeveloped areas occur on some of the higher-elevation inland portions of Carlsbad that have not been subjected to intense agricultural practices or development. Grasslands, coastal sage scrub, chaparral, riparian woodlands and forests, and riverine, palustrine, and estuarine habitats all contribute to the overall biological value and aesthetic appeal of the region. HELIX EnvironmentalPlann;ng ------------------------------- PreseNe Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 2.2 PRESERVE BOUNDARIES AND HISTORIC/CURRENT LAND USE The 1.6-acre preserve occurs within an approximately 9.5-acre property comprised of Assessor's Parcel Number [APN] 212-040-56 (Figure 4, Proposed HMP Preserve). The land within the preserve areas is currently undeveloped, with the areas proposed for the Laurel Tree A viara Apartments currently disturbed and developed with active nursery and commercial uses. Open space and commercial uses occur further to the north of the preserve, and open space and residential uses occur to the south, east, and west. Encinas Creek runs from northeast to northwest to the immediate north of the preserve, with portions of the riparian corridor overlapping the northern preserve areas. The preserve is generally characterized by non- native/ornamental vegetation and disturbed land dominated by hottentot fig (Carpobrotus edulis) with lower densities of fennel (Foeniculum vulgare), bristly ox-tongue (Helminthotheca echioides), tamarisk (Tamarix sp.), black mustard (Brassica nigra), fox chess (Bromus madritensis), and Russian thistle (Sa/sofa tragus). The majority of the preserve areas are highly disturbed from historic and current uses. A restoration plan has been prepared to establish coastal sage scrub in the disturbed areas, which combined with the avoided native habitat, will be added to the HMP Hardline (HELIX 2018b ). 2.3 GEOLOGY, SOILS, AND HYDROLOGY The proposed preserve site is characterized as being relatively flat, with Encinas Creek to the north of the site, and an east-facing slope on the east side of the proposed preserve site. Elevations range from approximately 170 feet to 80 feet above mean sea level (amsl). Soils mapped within the preserve include Las Flores loamy fine sand, 2 to 9 percent slopes; Visalia sandy loam, 2 to 5 percent slopes; and Diablo clay, 15 to 30 percent slopes (Bowman 1973; USDA 2013). 2.4 OWNERSHIP AND LEGAL DESCRIPTION The owner of the property is A viara, LP: Aviara, LP Attn: Dennis Dszuberla 3444 Camino Del Rio N San Diego, CA 92108 A viara, LP will remain the owner of the land during preserve management, with SDHC as the Preserve Manager and holder of the preserve's restrictive covenant. 2.5 EXISTING EASEMENTS Several existing easements occur throughout the property, as depicted on Figure 4. These include easements for public utilities, drainage, slope, temporary construction, and roads in favor of San Diego Gas and Electric Company (SDG&E), the County of San Diego (County), and the City. The majority of these easements are located outside of the project's preserve area. However, HELIX Environmental Planning------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 4 Preserve Management Plan Regional Location Map Figure 1-Reference Only Preserve Management Plan Aerial Photograph Figure 2 -Reference Only Preserve Management Plan USGS Topography Figure 3 -Reference Only portions of several easements overlap the preserve east of Aviara Parkway, including a City temporary construction easement, City water pipeline easement, and SDG&E utility easement (Figure 4). 2.6 RESTRICTIVE COVENANT COMPLIANCE An open space easement will be recorded on the final map, and a restrictive covenant will be recorded by the County. The restrictive covenant provides lists of permitted and prohibited uses in the preserve, consistent with this PMP. The property owner and Preserve Manager will be responsible for monitoring the preserve to ensure that adjacent landowners and the public are not violating the conditions of the restrictive covenant. 3.0 HABITAT AND SPECIES DESCRIPTION 3.1 VEGETATION COMMUNITIES Vegetation communities or habitat types are classified in this report according to the Carlsbad HMP (City of Carlsbad 2004), with further guidance from Oberbauer et al. (2008) and Holland ( 1986). A discussion of both the pre-restoration and post-restoration conditions with respect to vegetation communities is provided below. Pre-Restoration Conditions Four vegetation communities or land use types occur within the preserve prior to implementation of restoration: southern willow scrub, Diegan coastal sage scrub, non-native vegetation/ornamental, and disturbed habitat (HELIX 2018a; Figure 5, Proposed HMP Preserve Restoration, Maintenance, Conceptual Fencing, and Signage; Table 1, Vegetation Communities). Table 1 VEGETATION COMMUNITIES1 HABITAT PRE-POST- VEGETATION COMMUNITY GROUP RESTORATION RESTORATION ACREAGE ACREAGE Riparian Southern Willow Scrub F 0.24 0.24 Upland Diegan Coastal Sage Scrub (Unoccupied) D 0.5 1.4 Non-native Vegetation F 0.3 -- Disturbed Habitat F 0.6 -- TOTAL 1.64 1.64 1Riparian habitat rounded to the nearest hundredth; uplands rounded to the nearest tenth. Totals reflect rounding. Post-Restoration Conditions HELIX Environmental Planning------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 Two vegetation commurnties will occur within the preserve upon completion of project implementation, including restoration actions: southern willow scrub and DCSS. No changes to the southern willow scrub will occur and the habitat will remain in place, subject to active management in accordance with this plan. As depicted on Figure 5, the project would create and restore approximately 1.1 acres of DCSS in areas that are disturbed and characterized by non-native habitat types in the pre-restoration condition. This acreage includes 0.2 acre of DCSS that will be created and/or substantially restored as on-site mitigation, in addition to 0.9 acre that will be restored to meet the riparian buffer restoration requirement. An additional 0.3 acre of existing coastal sage scrub on-site will be avoided and also placed in biological open space. The restoration areas are divided into three main areas in the western, northwestern, and northeastern portions of the site. Within these areas, four different restoration treatment types will be implemented, as follows: • Diegan Coastal Sage Scrub Creation/Substantial Restoration (0.23 acre) • Diegan Coastal Sage Scrub Restoration-Riparian Buffer (0.64 acre) • Diegan Coastal Sage Scrub Restoration-Maintained Low Fuel Native Scrub (0.23 acre) • Diegan Coastal Sage Scrub Restoration-Maintained 50% Succulent Native Scrub (0.02 acre) 3.2 PLANT SPECIES A botanical inventory of the project site, including the preserve, was conducted in 2016. Plants observed on site are listed in Appendix A. Special-status plant species with potential to occur are included in Appendix B. Two plant species listed as special status by the California Native Plant Society ([CNPS] 2016) were confirmed adjacent to the project site. A single southwestern spiny rush individual was mapped along the water's edge of the southern willow scrub habitat off-site to the northeast of the project site (Figures 5 and 6). In addition, fourteen individuals of San Diego marsh elder were mapped in the same vicinity (Figures 5 and 6). Species Name: Southwestern spiny rush (Juncus acutus ssp. leopoldil) Status: --/--CNPS Rank 4.2 Distribution: Found in central and southern California, Arizona, and northern Baja California. Habitat(s): Occurs in wet alkaline places, coastal marshes, meadows, and seeps below 3,000 ft. Status on site: A single individual was observed along the edge of the southern willow scrub habitat off-site to the northeast of the preserve. Species Name: San Diego marsh-elder (Iva hayesiana) Status: --/--CNPS Rank 2B.2 Distribution: Endemic to San Diego County. Habitat(s): Occurs in marshes, washes, and drainages below 2,000 ft. Status on site: Fourteen individuals were observed within the southern willow scrub habitat and coastal sage scrub habitat off-site to the northeast of the preserve. HELIX fmlironmenta/Ptanning ------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001 .002 I October 2021 These two species are not listed as either A 1 or A2 species in Carlsbad, and thus do not require species-based monitoring. 3.3 WILDLIFE SPECIES Wildlife species observed on the project site, including the preserve are listed in Appendix A. No special-status animals were observed or otherwise detected during the 2017 focused species surveys. Special-status species with potential to occur in the project site are included in Appendix B. Several sensitive animal species have a low potential to occur, including least Bell's vireo and yellow warbler (Setophaga petechia) in the southern willow scrub, and coastal California gnatcatcher (Polioptila californica californica) in the Diegan coastal sage scrub. Existing disturbances, proximity to developments, and overall poor quality habitat strongly reduce the potential for sensitive animals to occur. 3.4 WILDLIFE CORRIDORS AND LINKAGES Important corridors and linkages have been identified on a local and regional scale throughout the MHCP and Multiple Species Conservation Program (MSCP) planning areas in San Diego County. The planning objectives of most corridors and linkages in coastal San Diego County include establishing a connection between the northern and southern regional populations of the coastal California gnatcatcher, in addition to facilitating movement and connectivity of habitat for large mammals and riparian bird species. As part of the MHCP, the Carlsbad HMP includes an assemblage of HMP Cores, Linkages, and Special Resource Areas (SRAs), with objectives to establish a network of habitat for the conservation of wildlife movement functions, primarily for birds and mammals. The project site encompasses disturbed and undeveloped land within the Carlsbad HMP, outside of HMP Core, Linkages, and SRAs. The project site is proposed for addition to the Existing Hardline that generally follows the Encinas Creek riparian corridor (Figure 5). This corridor has been identified by the City as Minor Linkage M6a (City of Carlsbad et al, 2015). This reach of Encinas Creek is disturbed and adjacent to several developments. Its function to facilitate wildlife movement in local and regional areas is limited due to existing impediments and relatively disturbed riparian habitat. Nevertheless, small and medium-sized mammals and birds could use the riparian corridor within the project reach for dispersal and foraging to and from breeding sites. Camera monitoring conducted in culverts under A viara Parkway and Laurel Tree Lane detected coyote, bobcat, opossum, rabbit, raccoon, and skunk (City of Carlsbad et al., 2015). Sensitive birds, such as the least Bell's vireo, have a potential to occur in the Encinas Creek reach, although the best quality habitat occurs further downstream from the project within the Encinas Creek Preserve (North County Habitat Bank). 3.5 FIRE HISTORY HELIX has no record of any fire occurring on the project site (USGS 2018). HELIX Environmental Planning------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 3.6 THREATS Non-Native Invasive Plant Species Non-native and invasive plant species are the highest threat to the preserve. Species such as oats, foxtail chess, pampas grass, fountain grass, bull thistle, Russian thistle, ice plant, eucalyptus, palm, black mustard, fox chess, and Russian thistle were all observed in the preserve. Upstream portions of Encinas Creek are already being managed, including invasive removal work by the San Elijo Lagoon Conservancy and monitoring and management of the Encinas Preserve by the Center for Natural Lands Management; therefore, there should be minimal recruitment of invasive species from upstream sources. Intensive treatment of invasives will be completed in year one, followed by twice-annual invasive treatment thereafter. Unauthorized Access/Human Use The second highest threat to the preserve is unauthorized access and human use. The preserve is situated adjacent to areas that are regularly used by people. It is currently subjected to occasional use by homeless individuals. Increased human and pet access is a concern in preserve areas and can result in increased edge effects such as trampling of vegetation, introduction of non-native species, unauthorized dumping, harassment of wildlife, and other adverse impacts. As a condition of project approval, permanent fencing will be installed where development abuts the northern and western portions of the preserve at locations most susceptible to unauthorized human access (Figure 5). The preserve will be posted with signs precluding access due to habitat sensitivity and prohibiting dumping (Figure 5). Further, the preserve will be inspected regularly by the Laurel Tree A viara development owner and Preserve Manager to monitor for unauthorized human use. Erosion Erosion currently poses a moderate threat to the preserve, given that the slope on the west side is disturbed. Additionally, preserve areas adjacent to Encinas Creek that are disturbed have potential to erode and deposit sediment into Encinas Creek. However, the disturbed areas will be restored with coastal sage scrub, which will improve its stability. Until vegetation has become established, supplemental erosion control measures will be in place to help prevent erosion within the preserve. These may include, but are not limited to, organic matting, fiber rolls (straw wattles), and silt fencing. Straw wattles used on the project site must only incorporate biodegradable netting. Erosion control measures will be kept in place by the restoration contractor until the restoration area has met performance standards and has been determined to no longer present an erosion threat, which will occur before the Preserve Manager takes responsibility for that area. The need for erosion control is not currently identified outside of the preserve area. HELIX Environmental Planning-------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 8 4.0 MANAGEMENT AND MONITORING This section provides goals and tasks in the form of ASMDs to direct management of and monitoring within this preserve. The goals and ASMDs guide all management decisions until the plan is revised and updated. Because management and monitoring are interdependent, they are discussed together. Preserve management and implementation of ASMDs will be the responsibility of the Preserve Manager. The management and monitoring tasks prescribed for this preserve are detailed below. 4.1 BIOLOGICAL GOALS AND TASKS GOAL I: Monitor habitat status and sensitive species to determine if each goal identified in the PMP will be met. OBJECTIVE I: Annually, the Preserve Manager will assess the monitoring and maintenance activities performed, efforts toward achieving each goal identified in this PMP, problems encountered, corrective actions taken, and adaptive management recommendations for the following year. ASMD I: • Quarterly Monitoring -The Preserve Manager will perform quarterly site visits to the preserve for patrolling and general preserve checks. During the visits, the preserve will be visually inspected for estimated non-native plant species coverage, non-native pest infestations, general wildlife use, and overall health and vigor of the habitat. Specifically, the Preserve Manager shall complete the following during site visits each year: Monitoring of Non-Native Plant Species -Assessment of non-native plant species shall be qualitative given the small size of the preserve. Two of the visits shall coincide with the twice-annual weeding events, during which non-native plant species treatment and removal shall be monitored and directed by the Preserve Manager. Additional monitoring can take place during other visits throughout the year. Monitoring of Pest Infestation -The preserve shall be visually inspected for sign of pest infestation (e.g., Polyphagous shot hole borer). Confirmed infestation shall be immediately reported to the Carlsbad HMP Preserve Steward. Photo-Documentation -At least four photo documentation stations will be mapped on an aerial photo using Global Positioning Satellite (GPS) equipment. These locations will be selected to capture large areas of contiguous habitat to allow for monitoring of visual changes in habitat quality and quantity, and will be utilized on an annual basis. The photo documentation stations will be utilized for the life of the project. • Annual Survey -The Preserve Manager should conduct an annual general biological resources survey, which may be conducted concurrently with a quarterly patrol/site visit. The HELIX Environmental Planning------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 9 annual general biological resources survey should only be conducted by qualified personnel with demonstrated knowledge of local flora and fauna who will identify and map (with GPS coordinates) observations of any sensitive species onsite. • Five-Year Vegetation and Sensitive Species Mapping -Every five years, the Preserve Manager shall include in the annual report an updated map depicting vegetation communities and sensitive species observed or otherwise detected during monitoring. GOAL 2: Eliminate invasive non-native plants noted during site visits performed by the Preserve Manager. OBJECTIVE 2: During Year I, non-native plant species coverage in the preserve will be reduced and maintained at 10 percent or less. Following the Year I treatment, resprouting or new infestations of invasive non-native plants shall be monitored and treated twice a year within the rainy season. Treatment of non-natives shall occur concurrently with the site visits performed by the Preserve Manager. ASMD2: • Non-Native Plant Species Treatment and Control -Non-native plant species considered to be highly invasive by the California Invasive Plant Council (Cal-IPC High and Moderate category species; Appendix C) shall be targeted for eradication within preserve boundaries. Regardless of listing as an invasive species or not, non-native species known by the scientific community to be locally invasive, in addition to Cal-IPC medium and high-risk species, will be controlled to minimize competition with native species. Non-native invasive plant species are a particularly significant threat to natural communities throughout southern California and are prevalent within the preserve. Oats, foxtail chess, pampas grass, fountain grass, bull thistle, Russian thistle, ice plant, eucalyptus, palm, black mustard, fox chess, and Russian thistle are species of particular concern in the preserve. Treatment of non-native plant species shall occur as follows: Year I Treatment and Control -An intensive treatment of non-native plant species shall be conducted over the entire preserve during Year l. The least toxic methods that provide effective control will be used (in order of preference: mechanical, organic herbicide, other herbicide). At the direction of the Preserve Manager, invasive plants shall be treated with herbicides and left in place or removed and disposed of at an approved off-site location, such as the Waste Management facility at 5960 Reef Circle, Carlsbad, California. Invasive plants should be removed and disposed of off-site when flowering or producing seed. Invasive plants may be treated with herbicide and left in place if they are not flowering/producing seed, and are not growing directly adjacent to native plants. Herbicides may only be applied by a licensed pesticide applicator under the supervision of a qualified biologist. A qualitative assessment of non-native plant species coverage shall be completed after the intensive treatment and at the end of Year 1 by the Preserve Manager. The goal for Year I will be to reduce living, non-native plant species coverage in the preserve to l O percent or less. HELIX Environmental Planning------------------------------- Preserte Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 10 Long-Term Management After Year 1 -Following the Year l treatment, resprouting or new infestations of invasive non-native plants shall be monitored for and treated at least twice a year within the rainy season, when non-natives are most prevalent. Treatment of non-natives shall occur concurrently with the site visits performed by the Preserve Manager. Eradication of established invasives may require several treatments per year for several years, and shall be conducted at the appropriate time of year for the targeted species based on that species' biology. As prescribed for Year 1, the least toxic methods that provide effective control will be used first before moving on to other methods. Non-native plant species treatment and removal activities such as use of gas-powered chainsaws and weed whippers that may disturb raptors and migratory birds should avoid the general bird breeding season (January 15 through September 15). If these activities must occur during the breeding season, they shall be limited to areas where the Preserve Manager has confirmed the absence of active bird nests. GOAL 3: Prevent unauthorized access/human use by inspecting the site for unauthorized access, damage, or vandalism. OBJECTIVE 3: The Preserve Manager will perform quarterly site visits and visually inspect the preserve for unauthorized access, fencing and signage damage, and vandalism. All cited access items should be repaired or replaced. Residential structures adjacent to the preserve may lead to unauthorized trails, trash, and dumping as a continued threat to the preserve. As depicted on Figure 5, permanent fencing will be installed by the owner where development abuts the northern and western portions of the preserve at locations most susceptible to unauthorized human access. The fencing will deter but not preclude access to the preserve. ASMD3: • Quarterly Monitoring -The Preserve Manager will perform quarterly site visits to the preserve for patrolling and general preserve checks as described under ASMD I. During the visits, the preserve will also be visually inspected for unauthorized access, fencing and signage damage, and vandalism. Specifically, the Preserve Manager shall complete the following during site visits each year: Monitoring of Unauthorized Access, Fencing and Signage, and Vandalism -Visual inspection of the preserve for unauthorized access, fencing and signage damage, and vandalism shall be completed by the Preserve Manager. Fencing of the preserve shall be kept in place consistent with the fencing plan (Figure 5). Fencing and signage that is damaged and no longer effective to control access and notify the public shall be replaced by the property owner. Illegal trespass, homeless use, vandalism, and other illegal activities shall be reported to the Carlsbad Police Department. The Laurel Tree A viara development owner shall also provide inspection for unauthorized uses of the preserve and report homeless use, vandalism, and other illegal activities to the Carlsbad Police Department. HELIX Environmental Planning------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 11 Trash Removal -Trash removal will be completed by the Preserve Manager and maintenance crews, as observed, during each visit. Trash will also be regularly removed by the Laurel Tree A viara development owner. Trash shall be disposed of properly at off- site locations. GOAL 4: Control erosion by visually inspecting the preserve. OBJECTIVE 4: The Preserve Manager will perform quarterly site visits to the preserve, visually inspect areas susceptible to erosion damage, and install, repair, and/or replace erosion control devices, if necessary, twice a year (or as needed) during non-native plant species treatment events. Unchecked erosion can result in the degradation of upland habitats through the elimination of topsoil and sedimentation. Erosion is often the result of uncontrolled access that results in unauthorized trails. Erosion is a concern on the northern and eastern side of the preserve where areas will be planted with native species according to the Laurel Tree A viara Project Restoration Plan (HELIX 2018b) and landscape plans prepared by GMP. ASMD4: • Installation and Maintenance of Erosion Control Devices -Erosion on the restored slope within the preserve is required to be addressed by the restoration contractor as part of the Laurel Tree Aviara project and in accordance with the project's Best Management Practices (BMPs) and erosion control measures specified on the project's landscape plans. Excessive erosion within these portions of the preserve will be addressed through installation and maintenance BMPs such as the use of straw wattles with biodegradable netting, rock water diversion structures in upland areas, reseeding bare areas, and other measures as appropriate. Erosion control within the restoration area will be the responsibility of the restoration contractor until the restoration effort achieves sign-off from the City, at which point the slope should be substantially stabilized. The BMPs that maximize the use of native material should be selected whenever feasible. • Quarterly Monitoring -The Preserve Manager will perform quarterly site visits to the preserve as described under ASMD l. During the visits, the preserve will also be visually inspected for erosion. Specifically, the Preserve Manager shall complete the following during site visits each year: Monitoring of Erosion -The Preserve Manager will visually inspect areas susceptible to erosion damage during the monitoring visits. Installation, repair, and replacement of erosion control devices, if necessary, will be completed twice a year by the Preserve Manager during non-native plant species treatment events. Controlling access to the preserve as outlined in the Unauthorized Access section above will help to minimize erosion from unauthorized foot trails. HELIX fnvironmenta/Pfanning ------------------------------- Preserte Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 12 4.2 PUBLIC USE GOALS AND TASKS GOAL 5: Limit public use to activities that benefit the preserve. OBJECTIVE 5: The Preserve Manager will allow access to the preserve for activities that do not adversely affect the preserve. These activities will be supervised by the Preserve Manager or a qualified biologist. The preserve is not identified for recreational use and does not include any authorized trails; therefore, there will be no public use except as specified below. ASMD5: • Enforce Access Restrictions -The Preserve Manager will enforce access rules during visits. The Preserve Manager will allow access to the preserve for science, research, and volunteer habitat management (trash removal, invasive plant removal), at the discretion of the Preserve Manager and as long as these activities do not adversely affect the preserve. Any volunteers conducting habitat management tasks will be supervised by the Preserve Manager or a qualified biologist. The owner will post appropriate signage. Each sign will identify that the property is protected habitat, provide contact information, and other pertinent information. Additionally, the Preserve Manager will coordinate with adjacent residents as necessary to address any concerns or answer questions. 4.3 FIRE MANAGEMENT Protecting human life and safety is the first priority of every fire management activity. This is the responsibility of the City of Carlsbad Fire Department. It is expected that the fire department will suppress I 00 percent of all unplanned wildland fires, regardless of ignition source, to the smallest size possible, protecting preserved habitat and adjacent property. Wildland fire is not a substantial threat to the preserve based on its small size and urban location, and as evidenced by the lack of fire history on-site. The Preserve Manager will be available to address any inquiries from neighboring residents regarding the fire protection measures that have been incorporated into the project and what actions will be taken, pre-and post-fire, in the event that a fire occurs. The development project includes structures adjacent to native habitat or preserve area; however, required fuel modification and specific low-fuel planting areas have been prescribed at key interface areas (Figure 5). Furthermore, as required, the project is subject to an approved Fire Management Plan to ensure appropriate design features and measures are in place to help protect against fires. The DCSS Restoration-Maintained Low Fuel Native Scrub shall be maintained by the owner to achieve native low fuel species composition throughout and the DCSS Maintained 50 percent Succulent Native Scrub shall be maintained by the owner to achieve at least 50 percent coverage of native succulents. The owner will coordinate with the Preserve Manager before maintenance events. Plant and seed designated for the low-fuel area are detailed in the Laurel Tree A viara Restoration Plan (HELIX 2019). Areas within the riparian buffer for the preserve are proposed to be restored with native coastal sage scrub in accordance with three HELIX Enlliro,imentalf'fanning ------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 13 specific plant palettes that achieve desired biological functions while meeting the low-fuel and succulent requirements for fire management. The fire management and fuel modification zone requirements for the project include the standard 60-feet of fuel modification, with a 20-foot Zone C-1, 20-foot Zone C-2, and 20-foot Zone C-3. Fuel modification terminates at the property boundary where it is less than the minimum 60-feet. Following a fire, the Preserve Manager will visually inspect the site for changes in non-native cover, pest infestations, and overall vigor of the habitat communities during regular maintenance and surveying activities to ensure that the habitat recovers to a healthy sustainable condition. The Preserve Manager will further coordinate with the City regarding post-fire recovery actions. If monitoring shows that the habitat is not recovering sufficiently, appropriate adaptive management measures (such as installation of erosion control BMPs, invasive species control, or revegetating) will be applied. The Preserve Manager should conduct post-fire habitat monitoring annually for up to five years in accordance with the City post-fire recovery protocols. Non-native invasive plant species are a particularly significant threat to natural communities throughout southern California in habitats recovering from fire or other disturbance. Non-native species shall be targeted for eradication within preserve boundaries by the Preserve Manager or a qualified biologist. Eradication may include removal by hand, weed whip, mowing or, if necessary, herbicides. The least toxic method that effectively removes the weeds should be used. Eradication of established invasive may require several herbicide applications per year for several years and shall be conducted at the appropriate time of year for the targeted species based on that species' biology. Herbicides may only be applied by a licensed pesticide applicator under the supervision of a qualified biologist. Following wildfires, unchecked erosion can result in excessive erosion and degradation of upland habitats through the elimination of topsoil and sedimentation. Excessive erosion within the preserve will be addressed through BMPs recommended by the Preserve Manager, such as the use of straw wattles with biodegradable netting, rock water diversion structures in upland areas, reseeding bare areas, and other measures as appropriate. BMPs that maximize the use of native material should be selected whenever feasible. 4.4 CONSTRAINTS TO IMPLEMENTING ASMDS There are no significant constraints to management. The preserve is small in size and easily accessible. 4.5 POTENTIAL IMPACTS OF IMPLEMENTING ASMDS There is the potential for temporary adverse impacts to habitats and species as part of the overall management of the preserve. Specific examples include incidental impacts to native plant species during non-native plant removal efforts, potential for harassment of nesting bird species during non-native plant removal, and survey efforts. These impacts will be avoided and/or minimized by the ASMD's noted above, and the activities associated with these impacts are anticipated to have a net long-term benefit to the habitat and sensitive species within the preserve. HELIX Environmental Planning------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 14 5.0 ADAPTIVE MANAGEMENT GOAL 6: Evaluate results and adjust management appropriately to meet the PMP goals and the City of Carlsbad's commitment to the conservation goals of the HMPIMHCP. OBJECTIVE 6: The Preserve Manager will perform ongoing evaluation each year to determine the need for adjusting management actions in response to new information and changing conditions. The term adaptive management was adopted by Holling (1978) for natural resource management, who described adaptive management as an interactive process that not only reduces but also benefits from uncertainty. Adaptive management includes steps that may be involved in a long-term adaptive implementation program, including opportunistic learning, management, monitoring, and directing the results of analysis and assessment back into the program through decision-makers. It is important that the PMP incorporate the flexibility to change implementation strategies after the initial startup. The PMP is intended to be flexible enough to develop adaptive management strategies that will facilitate and improve the decision- making process for operating the conservation program of the PMP as well as provide for informative decision-making. The PMP is also intended to be flexible enough to incorporate management and monitoring methods provided by the regional management and monitoring group that would be appropriate for the preserve. In addition, the Preserve Manager is expected to learn from and incorporate new implementation strategies based on their own observations, reviewing updated scientific literature (species biology, management/monitoring techniques, etc.), and networking with other land managers in the region. Adaptive management relies on monitoring efforts such as those outlined in Section 4.0 above to detect changes in species, habitats, and/or threats. Impacts from altered fire regime or climate change may also necessitate adaptive management strategies in the future. Linking the monitoring program with adaptive management actions will inform preserve managers of the status of target species, natural communities, and essential ecological processes, as well as the effectiveness of management actions in a manner that provides data to allow informed management actions and decisions. When change is detected, the Preserve Manager assesses the information and responds by initiating, modifying, or even ending a particular management strategy, if necessary. An important component of implementing the management measures described above will include evaluating data from monitoring activities to determine whether trends in threats are part of a natural cycle of fluctuation or are anthropogenic. If there is a substantial decline in native species compared to the baseline ( e.g., greater presence of invasive non-native plants) or other apparent threats to habitat conditions are observed, remedial measures will be evaluated with the City and implemented on an as-needed basis, based on the best available science. Adaptive management measures shall be limited to funds available for adaptive management as detailed in the Estimate for Long-term Management (ELM) which was prepared in lieu of a PAR. HELIX EmlifOllmenra/Ptanning ------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 15 ASMD 6: • Adaptive Management Measures -The need to implement adaptive management measures pertaining to non-native species control, unauthorized access/human use, and erosion will be determined during the site visits. Adaptive management measures shall be implemented under the direction of the Preserve Manager, as-needed and as funding is available. Modify Management and Coordinate with Regional Efforts -Continue to learn and modify management approaches by testing assumptions through purposeful monitoring and coordinating with local and regional monitoring and management entities, such as the Carlsbad HMP Preserve Steward and San Diego Management and Monitoring Program. Restore Natural Communities Impacted by Altered Fire Regime or Climate Change -If natural communities are altered due to habitat conversion or prolonged drought to the degree that they can no longer support covered species at levels that existed at preserve acquisition or post-restoration, the Preserve Manager will coordinate with wildlife agencies to determine if habitat restoration is warranted. Habitat restoration should be implemented using current and appropriate climate condition information. Funding for additional habitat restoration may be reallocated from existing management priorities or using contingency funds, as appropriate, or by pursuing outside funding sources. Five-Year PMP Update -Annually assess the overall management/monitoring strategy (frequency, methods, priorities, etc.), and update this PMP every five years as appropriate to meet the commitment to Carlsbad HMP conservation goals. A review of the goals and objectives of the PMP will also be conducted at that time. 6.0 ADMINISTRATION AND REPORTING This section addresses the operation and maintenance of the PMP, including funding and staffing, and reporting. 6.1 ANNUAL REPORTS AND PRESERVE MANAGEMENT PLAN An annual report summarizing the status of the preserve, monitoring survey results, and all major management tasks will be prepared by the Preserve Manager and provided to the City following the first year of management and annually thereafter, in October. The report shall discuss the previous year's management and monitoring activities, as well as management/monitoring anticipated in the upcoming year. It shall provide a concise and complete summary of management and monitoring methods, identify new management issues, address management issues raised in the previous year's report, report on the success or failure of management approaches (based on monitoring), and every fifth year it shall include updated mapping of vegetation and sensitive species. Photos from the photo monitoring stations shall be attached to the report. The report shall also outline appropriate remedial measures for those approaches not yielding satisfactory results. It shall include a summary of changes from baseline or previous year HELIX Environmental Planning------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 16 conditions, including an assessment of the overall health of vegetation communities in the preserve and any changes in health or distribution of sensitive plant or animal populations, and any areas of increased trespass or dumping. The report shall also address the need for any adaptive management resulting from previous monitoring and provide a methodology for measuring the success of any new or modified maintenance and/or monitoring measures. The report will also provide a financial summary describing expenditures for the year, and the status of the endowment. The PMP shall be updated every five years by the Preserve Manager, based on data collected during the annual reporting efforts, including photo documentation, and the best available science. The update should review any changes in site conditions, management priorities, and adaptive management strategies. Additionally, management strategies may evolve, or the property could be reviewed within the context of ongoing regional planning efforts that may warrant revisions to the PMP. Implementation of adaptive management strategies will be limited to funds available in the ELM. The annual report will summarize management of the annual budget and costs associated with one-time and ongoing management tasks, with the expectation that there will be a year-to-year variability of management costs based on management needs for any given year. A discussion of projected versus actual costs, and an accounting of the endowment, including the original endowment amount, current status of the endowment, interest earned, and projected and actual annual costs will also be provided. 6.2 DAT A MANAGEMENT Vegetation, sensitive resource data, and non-native species mapping will be maintained in a digital (GIS) format and will be provided in digital format to the City annually unless there has been no change from the previous year, but at least every five years. During years with no change, the City shall be notified of this and that no GIS will be provided for that year. Photo documentation of the site will be maintained digitally and will also be provided to the City every five years, if not already submitted with annual reports. 6.3 COMMUNICATION AND COORDINATION The owner and the Preserve Manager will coordinate with the City, the Carlsbad HMP Preserve Steward, other preserve managers, local volunteer groups, the resource agencies, and the adjacent businesses. The Preserve Manager will participate in the annual public workshop for HMP implementation hosted by the City. No other public training is needed since the preserve is not located in a residential area. 6.4 BUDGET/ENDOWMENT MANAGEMENT Implementation of the PMP will be paid for by funds provided by a start-up payment for the first three years of management, as well as an initial non-wasting cash endowment. A viara, LP, or their successor and assign, will make total payments of $308,332.81 to include initial funding of $52,226.93, emergency and legal fund of $9,850.23, and an endowment of $246,255.65 to fund HELIX Environmental Planning------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 17 annual management based on the ELM prepared for the preserve (Appendix D; Laurel Tree Aviara Preserve Estimate for Long-term Management). The endowment shall be held by The San Diego Foundation. The Preserve Manager shall have a duty of loyalty and shall not use the Endowment funds for its benefit. The San Diego Foundation is expected to act as a prudent investor of the Endowment funds. These safeguards will ensure that the funds will be available for long-term management in perpetuity. 6.5 OPERA TIO NS AND STAFFING Mr. Scoles will be the SDHC manager for this site and will be responsible for the implementation of the field management and monitoring efforts. Weeding and specific management efforts requiring significant labor will be conducted by landscape maintenance crews overseen by Mr. Scoles. Mr. Scoles is the Executive Director for SDHC and will oversee implementation of the PMP, as well as provide budget oversight. HELIX Environmental Planning------------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 18 7.0 REFERENCES Bowman, R.H. 1973. Soil survey of San Diego Area, California. USDA. Soil Conserv. Serv., Washington, DC. California Native Plant Society (CNPS). 2016. Inventory of Rare, Threatened, and Endangered Plants of California. Internet searchable database. Available at: www.rareplants.cnps.org. Updated quarterly. February. City of Carlsbad. 2004. Habitat Management Plan for Natural Communities in the City of Carlsbad. November. 2015. Center for Natural Lands Management, and Environmental Science Associates. City of Carlsbad Wildlife Movement Analysis Final Report. Submitted to the California Department of Fish and Wildlife as partial fulfillment of Local Assistance Grant. HELIX Environmental Planning, Inc. (HELIX). 2018a. Biological Resources Letter Report for the Laurel Tree Aviara Project. July 17. 2018b. Laurel Tree Aviara Project Restoration Plan (Draft). September. Holland, R.F. 1986. Preliminary Descriptions of the Terrestrial Natural Communities of California. Nongame-Heritage Program, State of California, Department of Fish and Game, Sacramento, 156 pp. Holling, C. S. (ed). 1978. Adaptive Environmental Management and Assessment. Wiley, Chichester. Oberbauer, T, Meghan Kelly, and Jeremy Buegge. 2008. Draft vegetation communities of San Diego County based on "Preliminary Descriptions of the Terrestrial Natural Communities of California", Robert F. Holland, Ph.D., October 1986. San Diego Association of Governments, San Diego, California. 73 pp. T AIC. 2004. City of Carlsbad Open Space Management Plan. Technology Associates International Corporation in association with the Center for Natural Lands Management. May 2004. U.S. Department of Agriculture (USDA). 2013. Web Soil Survey. Natural Resources Conservation Service. Online. http://websoilsurvey.nrcs.usda.gov/app/HomePage.htm. U.S. Geological Survey (USGS). 2018. Federal Fire Occurrence Map Viewer. Online. https://wildfire.cr.usgs.gov/firehistory/viewer/viewer.htm. HELIX Environmental Planning----------------------------- Preserve Management Plan for the Laurel Tree Aviara Project I 02153.00001.002 I October 2021 19 Appendix A PLANT AND ANIMAL SPECIES OBSERVED Appendix A PLANT SPECIES OBSERVED FAMILY SPECIES NAME COMMON NAME Native Species Adoxaceae Sambucus nigra ssp. caerulea blue elderberry Anacardiaceae Malosma faurina laurel sumac Rhus integrifolia lemonadeberry Asteraceae Ambrosia psilostachya western ragweed Artemisia californica California sagebrush Artemisia douglasiana mugwort Baccharis pifularis coyote brush Baccharis saliqfof ia mule fat Deinandrafasciculata fascicled tarplant Encelia californica California encelia Isocoma menziesii golden bush San Diego marsh- Iva hayesianat eldert Pseudognaphalium biolettii bicolor cudweed Xanthium strumarium cocklebur Heliotropium curassavicum var. Boraginaceae occulatum salt heliotrope Cactaceae Opuntia littoralis coastal prickly pear Chenopodiaceae Chenopodium sp. goosefoot Cyperaceae Cyperus eragrostis tall flatsedge Cyperus esculentus yellow nutsedge Ef eocharis macrostachya pale spike-rush Schoenopf ectus acutus var. occidentalis tule Fabaceae A cmispon glaber deerweed Gentianaceae Zeltnera venusta canchalagua Iridaceae Sisyrinchium bel/um blue-eyed grass southwestern spiny Juncaceae Juncus acutus ssp. leopoldiit rusht Lamiaceae Salvia mellifera black sage Malvaceae Mafacothamnus fascicufatus chaparral mallow Onagraceae Epifobium ciliatum ssp. ciliatum willow herb Oenothera elata ssp. hookeri Hooker's evening pnmrose Phrymaceae Mimufus aurantiacus monkey-flower Pinaceae Pinus sp. Pine A-1 Appendix A (cont.) PLANT SPECIES OBSERVED Native Species (cont.) Polygonaceae Rosaceae Salicaceae Salicaceae Salicaceae Saururacaea Solanaceae Solanaceae Typhaceae Eriogonum .fasciculatum Heteromef es arbutifolia Populus fremontii ssp. fremontii Salix gooddingii Salix lasiolepis Anemopsis californica Datura wrightii Solanum americanum Typha domingensis Non-native Species Aizoaceae Cmpobrotus edulis Mesembryanthemum crystaflinum Mesembryanthemum nodiflorum Apiaceae Conium maculatum Foeniculum vulgare Arecaceae Washingtonia robusta Asparagaceae Asparagus asparagoides Asteraceae Gfebionis coronaria Helminthotheca echioides Lactuca serriola Sonchus oleraceus Brassicaceae Brassica nigra Hirsclifeldia incana Raphanus sativus Sisymbrium irio Capri fo I iaceae Lonicera japonica Chenopodiaceae A triplex semibaccata Sa/sofa tragus Euphorbiaceae Chamaesyce maculata Fabaceae Acacia sp. Lamiaceae Rosmarinus officinalis Myrsinaceae Lysimachia arvensis Myrtaceae Eucalyptus sp. Pittosporaceae Pittosporum sp. Poaceae Avena sp. A-2 buckwheat toyon Fremont cottonwood Goodding's black willow arroyo willow yerba mansa jimsonweed white nightshade southern cattail hottentot-fig crystalline iceplant slender-leaved iceplant poison-hemlock fennel Mexican fan palm bridal creeper garland daisy bristly ox-tongue wi ld lettuce common sow thistle black mustard short-pod mustard wild radish London rocket honeysuckle Australian saltbush Russian thistle spotted spurge acacia rosemary scarlet pimpernel eucalyptus cheesewood oats Non-native Species (cont.) Poaceae Polygonaceae Rosaceae Solanaceae Tamaricaceae Tropaeolaceae FAMILY Birds Aegithalidae Cardinalidae Corvidae Emberizidae Fringillidae Parulidae Picidae Trochilidae Troglodytidae Tyrannidae Mammals Leporidae Sciuridae tSensitive species Bromus diandrus Bromus madritensis Cortaderia selloana Cynodon dactylon Paspalum dilatatum Polypogon monspeliensis Rumex crispus Eriobottyajaponica Nicotiana glauca Tamarix sp. Tropaeo/um majus Animal Species Observed SPECIES NAME Psaltriparus minimus Pheucticus melanocephalus Aphelocoma californica Corvus brachyrhynchos Me/ozone crissalis Pipilo maculatus Haemorhous mexicanus Spinus psa/tria Geothlypis trichas Jcteria virenst Picoides nuttallii Ca/ypte anna Troglodytes aedon Sayornis nigricans Tyrannus vociferans Sylvilagus audubonii Otospermophilus beecheyi A-3 common ripgut grass foxtail chess white pampasgrass Bermuda grass dallis grass annual beardgrass curly dock loquat tree tobacco tamarisk nasturtium COMMON NAME bush tit black-headed grosbeak western scrub-jay American crow California towhee spotted towhee house finch lesser goldfinch common yellowthroat yellow-breasted chatt Nuttall 's woodpecker Anna's hummingbird house wren black phoebe Cassin's kingbird desert cottontail California ground squirrel AppendixB SPECIAL STATUS SPECIES POTENTIAL TO OCCUR Appendix B SENSITIVE SPECIES POTENTIAL TO OCCUR1 Species Name Common Name Status2 Habit, Ecoloev and Life History Potential to Occur3 Plants Acanthomintha San Diego FT/SE Annual herb. Occurs in vernal Not expected. Suitable habitat ilicifolia thornmint C RPR 18.1 pools, clay depressions on mesas, (vernal pools, clay depressions) HMP Lists 2 slopes within chaparral, coastal not present. Suitable soils are and 3 sage scrub, as well as freshwater present in limited portions of wetlands. Flowering period April the site, but they are restricted -June. Elevation 0-3,280 feet (0-to slopes and landscape 1,000 meters). positions that lack suitable conditions for the species. Acmispon prostratus Nuttall's acmispon --/--Annual herb. Occurs within dune None. Suitable dune and CRPR 18.1 and coastal habitats within coastal coastal habitat not present on strand and coastal sage scrub site, and site occurs above communities. Flowering period recorded elevation of this March -June. Elevation 0-65 feet species. (0-20 meters). Adolphia californica San Diego adolphia --/--Perennial shrub. Most often found Presumed absent. Suitable CRPR 28.1 in sage scrub but occasionally habitat is present on portions of occurs in peripheral chaparral the project site; however, this habitats, particularly hillsides near species was not observed creeks. Flowering period during biological surveys. December -April. Elevation 20- 655 feet (6-200 meters). A rctostaphylos Del Mar manzanita FE/--Occurs in coastal San Diego Not expected. Maritime glandulosa ssp. CRPR 18.1 County in maritime chaparral on chaparral not present on site. crassifolia HMP List 3 sandy soils. Flowering period December -June. Elevation 65- 2,295 feet (20-700 meters). 8-1 Atriplex pacifica south coast saltscale --/--Perennial herb. Occurs in coastal None. Suitable habitat not CRPR 1B.2 scrub on bluffs and playas. present on site. Flowering period March - October. Elevation 3-1,640 feet (1-500 meters). Baccharis vanessae Encinitas baccharis FT/SE Shrub. Occurs in chaparral and Presumed absent. Suitable CRPR 1B.1 Torrey-pine understory. Flowering habitat is present on portions of period August -November. the project site; however, this Elevation 197-984 feet (60-300 species was not observed meters). during biological surveys and the site occurs below recorded elevation of this species. Bloomeria San Diego --/--Perennial herb. Occurs in coastal Presumed absent. Suitable clevelandii goldenstar CRPR 1B.1 scrub and mesa grassland. habitat is present on portions of Flowering period April -May. the project site; however, this Elevation under 328 feet ( 100 species was not observed meters). during biological surveys. Brodiaea filifolia Thread-leaved FT/SE Perennial herb. Occurs on clay Not expected. Suitable soils are brodiaea CRPRlB.l soils near chaparral openings, present in limited portions of HMP Covered cismontane woodlands, coastal the site, but they are restricted scrub, playas, grasslands, and to slopes and landscape vernal pools. Flowering period positions that lack suitable March -June. Elevation 130-conditions for the species. 3,700 feet (40-1,130 meters). Brodiaea orcuttii Orcutt's brodiaea --/--Small perennial herb. Occurs only Not expected. Suitable soils are CRPR 1B.l on clay and serpentine soils in present in limited portions of HMP List 3 vernally moist environments, the site, but they are restricted usually near vernal pools, to slopes and landscape meadows, and seeps. Flowering positions that lack suitable period May -July. Elevation 330-conditions for the species. Site 5,740 feet (100-1,750 meters). occurs below recorded elevation of this species. B-2 Ceanothus Wart-stemmed --/--Perennial evergreen shrub Not expected. Suitable habitat verrucas us ceanothus CRPR2B.2 occurring in xeric chamise or not present. HMP Lists 2 southern maritime chaparral. and 3 Flowering period January -April. Elevation 23-2,165 feet (7-660 meters). Chaenactis Orcutt's pincushion --/--Annual herb. Occurs in sandy Presumed absent. Although glabriuscula var. CRPR 1B.l coastal bluff scrub and coastal sandy soil is present on site, the orcuttiana dunes. Flowering period January -vast majority of occurrences are August. Elevation 0-230 feet (0 -closer to the coast, and the 70 meters). nearest recorded population occurs approximately 2.3 miles northwest. Species not observed during rare plant or other biological surveys. Comarostaphylis Summer-holly --/--Mesic north-facing slopes in Presumed absent. Suitable diversifolia ssp. CRPR 1B.2 southern mixed chaparral are the habitat is present on portions of divers(folia HMP List 3 preferred habitat of this large, the project site; however, this showy shrub. Flowering period species was not observed April -June. Elevation 100-2,690 during rare plant or other feet (30-820 meters). biological surveys. Corethrogyne Del Mar Mesa sand --/--Perennial herb found in coastal Presumed absent. Suitable jilaginifolia var. aster CRPRlB.1 bluff scrub, maritime chaparral, habitat is present on portions of linifolia HMP List 3 and coastal scrub. Flowering the project site; however, this period May -September. species was not observed Elevation 49-492 feet ( 15 -150 during rare plant or other meters). biological surveys. Cryptantha wigginsii Wiggins' cryptantha --/--Annual herb found in clay soils Presumed absent. Suitable CRPR 1B.2 within coastal scrub habitat. habitat is present on portions of Flowering period February-June. the project site; however, this Elevation feet 66-902 feet (20 -species was not observed 275 meters). during rare plant or other biological surveys. B-3 Dudleya Blochman's dudleya --/--Occurs in coastal bluff scrub and Presumed absent. Suitable blochmaniae ssp. CRPR 18.1 coastal sage scrub or open habitat is present on portions of blochmaniae HMP Covered chamise chaparral near the ocean. the project site, but the site is Flowering period April -June. likely too far inland to support Elevation less than 1,476 feet (450 this species. Not observed meters). during rare plant or other biological surveys. Dudleya viscida sticky dudleya --/--Perennial herb. Occurs in rocky Not expected. Suitable CRPR 1B.2 soil within coastal bluff scrub, vegetation is present on HMP List 2 chaparral, cismontane woodland, portions of the project site, but and coastal scrub habitats. soils are not substantially Flowering period May -June. rocky. Not observed during rare Elevation 30-2,590 feet ( 10-790 plant or other biological meters). surveys. The nearest recorded occurrence is approximately 2. 7 miles to the northeast (RareFind 2017). Ericameria palmeri Palmer's --/--Large evergreen shrub. Occurs in Low. Suitable habitat is present var. palmeri golden bush CRPR 18.1 coastal drainages, mesic chaparral, on site; however, this species and occasionally in coastal sage would have been detectable scrub. Flowering period July -during rare plant and other November. Elevation 165-1, 700 biological surveys, but was not feet (50-520 meters). observed. Euphorbia misera cliff spurge --/--Perennial shrub. Occurs on rocky None. Suitable rocky slopes CRPR 28.2 slopes and coastal bluffs in coastal and coastal bluffs not found on HMP Covered sage scrub. Flowering period site. December -August. Elevation 0- 1,640 feet (0-500 meters). B-4 Ferocactus San Diego barrel --/--Perennial cactus. Occurs in sandy Presumed absent. Suitable viridescens cactus CRPR 2B.1 to rocky areas within chaparral, habitat is present on portions of HMP List 2 valley grassland, and coastal sage the project site. This scrub. Flowering period May -conspicuous species was not June. Elevation 25-1,245 feet (7-observed during rare plant and 380 meters). other biological surveys. Hazardia orcuttii Orcutt's hazardia --/ST Perennial evergreen shrub found Presumed absent. Suitable CRPR 1B.1 in clay soils in maritime chaparral habitat is present on portions of HMP Covered and coastal scrub habitats. the project site; however, this Flowering period August -species was not observed October. Elevation 262-279 feet during rare plant or other (80 -85 meters). biological surveys, and the site occurs below recorded elevation of this species. Isocoma menziesii decumbent --/--Perennial shrub found in chaparral Presumed absent. Suitable var. decumbens goldenbush CRPR 1B.2 and sandy, often disturbed coastal habitat is present on portions of scrub. Flowering period April -the project site; however, this November. Elevation 33-443 feet species was not observed (10 -135 meters). during rare plant or other biological surveys. Iva hayesiana San Diego marsh---/--Occurs along stream courses. Present. 14 individuals elder CRPR2B.2 Shrub identifiable all year. observed on site within HMP Lists 2 Flowering period April -October. southern willow scrub habitat and 3 Elevation less than 2,953 feet (900 and coastal sage scrub habitat. meters). Juncus acutus ssp. southwestern spiny --/--Shrub identifiable all year. Occurs Present. 1 individual observed leopoldii rush CRPR4.2 in wet alkaline places, coastal on site along water's edge of marshes, meadows and seeps. southern willow scrub habitat. Elevations below 3,000 feet (914 meters). B-5 Lasthenia glabrata Coulter's goldfields --/--Occurs in salt marsh communities Not expected. Suitable habitat ssp. coulteri CRPR 1B.1 near the coast, as well as on the not present. periphery of vernal pools. Flowering period April -May. Elevation less than 3,281 feet (1,000 meters). Leptosyne maritima sea dahlia --/--Medium perennial herb. Occurs on Not expected. Suitable habitat CRPR2B.2 bluffs in maritime scrub. not present, and site occurs Flowering period March-May. above recorded elevation of this Elevation 0-65 feet (20 meters). species .. Myosurus minimus little mousetail --/--Annual herb found in valleys, Not expected. Suitable habitat ssp. apus CRPR 3.1 foothill grasslands, and vernal not present. HMP List 3 pools. Flowering period March - June. Elevation 66-2,100 feet (20 - 640 meters). Navarretia fossalis spreading FT/--Small herb. Occurs in vernal Not expected. Suitable habitat navarretia CRPR 1B.l pools, playas, freshwater marshes, not present. Site occurs below HMP List 3 and chenopod scrub. Flowering recorded elevation of this period April -June. Elevation species. 200-3,000 feet (61-914 meters). Nemacaulis coast woolly-heads --/--Small annual herb. Occurs on None. Suitable habitat not denudata var. CRPR IB.2 coastal sand dunes. Flowering present. Nearest recorded denudata period April -September. population occurs over 2 miles Elevation 0-300 feet (0-91 to the southwest, at the coast. meters). Orcuttia cal(fornica California Orcutt FE/SE Annual herb found in vernal pools. Not expected. Suitable habitat grass CRPR 1B.1 Seriously threatened by not present. HMP List 3 agriculture, development, non- native plants, grazing, and vehicles. Flowering period April - August. Elevation 49-2, 165 feet (15 -660 meters). B-6 Quercus dumosa Nuttall's scrub oak --/--Perennial evergreen shrub. Occurs Presumed absent. Suitable CRPR lB.l in closed-cone coniferous forest, habitat is present on portions of HMP Covered chaparral, coastal scrub. Generally the project site; however, this on sandy soils near the coast; species was not observed sometimes on clay loam. during rare plant or other Flowering period February -biological surveys. August. Elevation 50-3,000 feet (15-914 meters). Suaeda esteroa estuary seablite --/--Succulent-leaved perennial shrub None. Suitable habitat not CRPR 1B.2 of the goosefoot family present, and site occurs above (Chenopodiaceae) endemic to the recorded elevation of this coastal zone of California. Occurs species. Nearest recorded in coastal salt marshes. Flowering population occurs period July -October. Elevation approximately 1.8 miles to the 0-49 feet (0-15 meters). southwest, at the coast. Animals In vertebrates Branchinecta lynchi vernal pool fairy FT/--Occur primarily in vernal pools, None. Suitable habitat (vernal shrimp seasonal wetlands that fill with pools) does not occur on the water during fall and winter rains project site. and dry up in spring and summer. Typically, the majority of pools in any vernal pool complex are not inhabited by the species at any one time. Branchinecta San Diego fairy FE/--Occurs in seasonally astatic pools, None. Suitable habitat (vernal sandiegonensis shrimp HMP List 3 which occur in tectonic swales or pools) does not occur on the earth slump basins and other areas project site. of shallow, standing water often in patches of grassland and agriculture interspersed in coastal sage scrub and chaparral. B-7 Danaus plexippus monarch --/--Winter roost sites extend along the Not Expected. Larval host coast from northern Mendocino to plant, milkweed (Asclepias sp.) Baja California, Mexico. Roosts was not observed on site. No located in wind-protected tree roost sites present. groves ( eucalyptus, Monterey pine, cypress), with nectar and water sources nearby. Larval host plants consist of milkweeds (Asclepias spp.). Euphydryas editha Quino checkerspot FE/--Sunny openings within chaparral None. Larval host plant, dot- quino butterfly and coastal sage shrublands. Host seed plantain (Plantago erecta) plants include Plantago erecta, was not observed on site. Site is Cordylanthus rigidus, Collinsia outside of species range. spp., Plantago patagonica, Antirrhinum coulterianum, and Castilleja exserta. Streptocephalus Riverside fairy FE/--Restricted to deep vernal pools None. Suitable habitat (vernal woottoni shrimp HMP List 3 and ponds with chemistry and pools) does not occur on the temperature conditions specific to project site. non-marine and non-riverine waters. All known vernal pool habitat lies within annual grasslands, which may be interspersed with chaparral or coastal sage scrub vegetation. Tryonia imitator California --/--Very small brackish water snail None. Suitable habitat (salt brackishwater snail found in brackish salt marshes and marsh and herbaceous wetland) herbaceous wetlands. does not occur on the project site. B-8 Vertebrates Fish Eucyclogobius tidewater goby FE/SSC Annual fish species that is None. Suitable habitat does not newberryi endemic to California. Found occur on the project site. primarily in waters of coastal lagoons, estuaries, and marshes. Amphibians and Reptiles Aspidoscelis orangethroat --/WL Coastal scrub, chaparral, and High. Suitable habitat ( coastal hyperythra whiptail HMP Covered valley and foothill hardwood sage scrub and chaparral) habitats. Prefers washes and sandy present in portions of the site. areas with patches of brush and Not observed during biological rocks. Perennial plants required to surveys. support its primary prey termites. Aspidoscelis tigris coastal whiptail --/SSC Occurs in open coastal sage scrub, High. Suitable habitat present stejnegeri chaparral, and woodlands. in portions of the site. Not Frequently found along the edges observed during biological of dirt roads traversing its habitats. surveys. Important habitat components include open, sunny areas, shrub cover with accumulated leaf litter, and an abundance of insects, spiders, or scorpions. Phrynosoma coast horned lizard --/SSC Coastal sage scrub and chaparral High. Suitable habitat present blainvillii in arid and semiarid climate in portions of the site. Not conditions.Favored prey are observed during biological harvester ants (Pogonomyrmex surveys. sp.). Salvadora hexalepis coast patch-nosed --/SSC Semi-arid brushy areas and High. Suitable habitat present virgultea snake chaparral in canyons, rocky in portions of the site. Not hillsides, and plains. Found among observed during biological preferred habitats of whiptails, its surveys. favored prey. B-9 Thamnophis two-striped garter --/SSC Occurs along permanent and High. Suitable habitat present hammondii snake intermittent streams bordered by in northern portion of the site. dense riparian vegetation, but Not observed during biological occasionally associated with surveys. vernal pools or stock ponds. Birds Accipiter cooperii Cooper's hawk --/WL Tends to inhabit lowland riparian High. May occur in southern HMP Covered areas and oak woodlands in willow scrub in northern proximity to suitable foraging portion of the site, which will areas such as scrublands or fields. be avoided. The site provides potential foraging habitat. Aimophila rujiceps Southern California --/WL Found in coastal sage scrub and High. Suitable habitat present canescens rufous-crowned HMP Covered sparse mixed chaparral. in portions of the site. sparrow Athene cunicularia Burrowing owl BCC/SSC Occurs in sunny, dry stands of None. Suitable habitat present coastal sage scrub or chaparral. in portions of the site; however the nearest recorded population occurs approximately 12 miles to the east. Campylorhynchus coastal cactus wren BCC/SSC Occurs in coastal sage scrub with Not expected. Appropriate brunneicapillus large cacti for nesting. cacti habitat for nesting does sandieKensis not occur on site. Charadris nivosus western snowy FT, BCC/SSC Found in beaches, dunes, and salt Not expected. Suitable habitat nivosus plover HMP Covered flats throughout the southwestern for breeding/foraging not United States from Texas to present. California and up to Colorado, as well as Washington and Oregon. Eat invertebrates like crustaceans and mollusks, marine worms, along with insects. B-10 Elanus leucurus white-tailed kite --IFP Riparian woodlands and oak or High. May occur in southern sycamore groves adjacent to willow scrub in northern grassland. portion of the site, which will be avoided. Marginal foraging habitat occurs within the disturbed areas on the project site. Empidonax traillii southwestern FE/SE Breeds within thickets of willows or High. May occur in southern extimus willow flycatcher HMP Covered other riparian understory usually willow scrub in northern along streams, ponds, lakes, or portion of the site, which will canyons. Migrants may be found be avoided. among other shrubs in wetter areas. I cteria virens yellow-breasted --/SSC Prefers mature riparian Present. Observed on site in chat HMP Covered woodlands. 2017, within the Existing Hardline and open space areas that will be avoided by the prnject. Passerculus Belding's savannah --/SE Occurs primarily in grassland, Not Expected. Suitable habitat sandwichensis sparrow HMP Covered saline emergent wetland, and wet does not occur on the project beldingi meadow habitats. Coastal breeders site. restricted to saline emergent wetlands and, in northern California, to moist grasslands within the fog belt. Plegadis chihi white-faced ibis --/WL Occurs in large marshes, with Not Expected. Suitable habitat HMP Covered nesting colony hidden in does not occur on the project inaccessible reedbed or willow-site. covered area. B-11 Polioptila Coastal California FT/SSC Coastal sage scrub below 2500 ft Not Expected. Not observed californica gnatcatcher HMP Covered in southern California. Low, during protocol survey in 2017. californica coastal sage scrub in arid washes, on mesas and slopes. Not all areas classified as coastal sage scrub are occupied. Rallus obsoletus Light-footed FE/SE, FP Coastal saline emergent wetlands Not expected. Appropriate levipes Ridgeway's rail HMP Covered along southern California. shallow water and mudflat Requires shallow water and environment do not exist on mudflats for foraging, with site. adjacent higher vegetation for cover during high water. Setophaga petechia yellow warbler BCC/SSC Found along riparian woodlands. High. May occur in southern willow scrub in northern portion of the site, which will be avoided. Sternula antillarum California least tern FE/SE, FP Migratory in California arriving in Not Expected. Suitable browni HMP Covered late April. Breeding colonies are breeding habitat does not occur located along marine and estuarine on the project site. shores. Feed in nearby shallow, estuarine waters. Vireo bellii pusil !us least bell's vireo FE/SE Summer resident of Southern Not Expected. Not observed HMP Covered California in low riparian areas in during protocol survey in 2017. the vicinity of water or in dry river bottoms below 2,000 ft. Nests places along the margins of bushes or on twigs projecting into pathways. Mammals Chaetodipus Dulzura California --/SSC Variety of habitats including coastal High. Marginally suitable californicus pocket mouse scrub, chaparral, and grasslands in habitat present in portions of femoralis San Diego County. Associated with the site. Not observed during grass-chaparral edges. biological surveys. B-12 Chaetodipus fallax northwestern San --SSC Prefers open, sandy land with High. Suitable habitat present fallax Diego pocket weeds, which occurs on site but in on site. Not observed during mouse very small patches. biological surveys. Choeronycteris Mexican long---/SSC Occurs in a wide variety of Not Expected. Suitable habitat mexicana tongued bat habitats from arid thorn scrub to does not occur on the project tropical deciduous forest and site. mixed oak-conifer forest. Species distribution in California is limited primarily to San Diego County. Dipodomys simulans Dulzura kangaroo rat Lasiurus cinereus hoary bat --/-- Lasiurus xanthinus western yellow bat --/SSC Found in wooded areas and desert High. Suitable habitat occurs in scrub, particularly in palm trees. the northern portion of the Rare visitor to San Diego County project site, which will be (Bats of San Diego County 2012). avoided. Lepus californicus San Diego black---/SSC Found primarily in open habitats High. Suitable habitat present bennettii tailed jackrabbit including coastal sage scrub, on site. Not observed during chaparral, grasslands, croplands, biological surveys. and open, disturbed areas if there is at least some shrub cover present. Neotoma lepida San Diego desert --/SSC Open chaparral and coastal sage High. Suitable habitat present intermedia woodrat scrub, often building large, stick on site. No sign was observed. nests in rock outcrops or around clumps of cactus or yucca. Nyctinomops pocketed free-tailed --/SSC Semiarid desert lands. Day-roosts in High. Marginally suitable femorosaccus bat caves, crevices in cliffs, and under habitat (i.e., structures) are the roof tiles of buildings. Uses a present on site. variety of arid habitats in southern California: pine-juniper woodlands, desert scrub, palm oases, desert wash, desert riparian, etc. Prefers rocky areas with high cliffs. B-13 Odocoileus Southern mule deer --/--Mule deer occupy to some extent High. Suitable open habitat hemionus almost all types of habitat within occurs on the site, and the rural their range but, in general, they setting is appropriate for this seem to prefer the more arid, open species. situations 1Sensitive species reported within 5 miles of the project site. ~Listing is as follows: F = Federal; S = State of California; E = Endangered; T = Threatened; R = Rare; BCC = U.S. Fish & Wildlife Service Birds of Conservation Concern; SSC= State Species of Special Concern; FP = Fully Protected; WL = California Department offish & Wildlife Watch List; CRPR = California Rare Plant Rank: IA -presumed extinct; I B -rare, threatened, or endangered in California and elsewhere; 2A-presumed extirpated in California but more common elsewhere; 2B -rare, threatened, or endangered in California but more common elsewhere; 3 -more infonnation needed; 4 -watch list for species of limited distribution. Extension codes: . I -seriously endangered; .2 -moderately endangered; .3 -not very endangered ·1 Potential to Occur is assessed as follows. None: Species is either sessile (i.e. plants) or so limited to a particular habitat that it cannot disperse on its own, and habitat suitable for its establishment and survival does not occur on the project site; Not Expected: Species moves freely and might disperse through or across the project site, but suitable habitat for residence or breeding does not occur on the project site; Low: Marginally suitable habitat is present on the project site but oflow quality and no sign of the species was observed during surveys, however the species cannot be excluded with certainty; Presumed Absent: Quality and extent of suitable habitat are sufficient to support residence and breeding, however protocol-level focused surveys have been conducted for the current project and results were negative; High: Suitable habitat occurs on the project site and the species has been recorded recently on or near the project site, but was not observed during surveys for the current project; Presumed Present: The species was observed during biological surveys for the current project and is assumed to occupy the project site. B-14 THIS PAGE INTENTIONALLY LEFT BLANK AppendixC HIGH AND MODERATE CATEGORY INVASIVE PLANTS Appendix C CAL-IPC: THE INVENTORY HIGH AND MODERATE CATEGORY INVASIVE PLANTS SCIENTIFIC NAME High Category Species Alternanthera philoxeroides Ammophila arenaria Arundo donax Brassica tournefortii Bromus madritensis ssp. rubens Bromus tectorum Carpobrotus edulis Centaurea maculosa Centaurea solstitialis Cortaderiajubata Cortaderia selloana Cytisus scoparius Delairea odorata Egeria densa Eichhornia crassipes Euphorbia esula Foeniculum vulgare Genista monspessulana Hedera helix, H. canariensis Hydrilla verticillata Lepidium latifolium Ludwigia hexapetala Ludwigia peploides ssp. montevidensis Lythrum salicaria Myriophyllum aquaticum Onopordum acanthium Rubus armeniacus Sesbania punicea Spartium junceum Taeniatherum caput-medusae Tamarix parviflora Tamarix ramosissima C-1 COMMON NAME alligator weed European beachgrass giant reed Saharan mustard, African mustard red brome downy brome, cheatgrass Hottentot-fig, iceplant spotted knapweed yellow starthistle jubatagrass pampas grass Scotch broom Cape-ivy, German-ivy Brazilian egeria water hyacinth leafy spurge fennel French broom English ivy, Algerian ivy hydrilla perennial pepperweed, tall whitetop Uruguay water-primrose creeping water-primrose purple loosestrife parrotfeather Scotch thistle Himalaya blackberry red sesbania, scarlet wisteria Spanish broom medusahead smallflower tamarisk saltcedar, tamarisk Appendix C (cont.) CAL-IPC: THE INVENTORY HIGH AND MODERATE CATEGORY INV AS IVE PLANTS SCIENTIFIC NAME Moderate Category Species Acacia dealbata Acroptilon repens Ageratina adenophora Ailanthus altissima Alhagi maurorum Arctotheca calendula (sterile) Asparagus asparagoides Asphodelus jistulosus Atriplex semibaccata Brachypodium distachyon Brassica nigra Bromus diandrus Cardaria chalepensis Carduus pycnocephalus Carpobrotus chilensis Centaurea calcitrapa Centaurea d(ffi1sa Centaurea melitensis Chrysanthemum coronarium Cirsium arvense Cirsium vulgare Conium maculatum Cotoneaster lacteus Cotoneaster pannosus Cynara cardunculus Cynodon dactylon Cynosurus echinatus Cytisus striatus Dipsacus fullonum Dipsacus sativus Dittrichia graveolens Ehrharta erecta Ehrharta longiflora Elaeagnus angustifolia Emex spinosa C-2 COMMON NAME silver wattle Russian knapweed croftonweed, eupatorium tree-of-heaven camel thorn sterile capeweed bridal creeper onionweed Australian saltbush Purple false broom black mustard ripgut brome lens-podded white-top Italian thistle sea-fig, iceplant purple starthistle diffuse knapweed Tocalote crown daisy Canada thistle bull thistle poison-hemlock Pamey's cotoneaster silverleaf cotoneaster artichoke thistle bermudagrass hedgehog dogtailgrass Portuguese broom common teasel fuller's teasel stinkwort erect veldtgrass long-flowered veldtgrass Russian-olive spiny emex, devil's-thorn Appendix C (cont.) CAL-IPC: THE INVENTORY HIGH AND MOD ERA TE CATEGORY INVASIVE PLANTS SCIENTIFIC NAME Moderate Category Species (cont.) Erechtites glomerata, E. minima Eucalyptus globulus Euphorbia terracina Festuca arundinacea Ficus carica Geranium dissectum Glyceria declinata Halogeton glomeratus Hirschfeldia incana Holcus lanatus Hordeum marinum, H murinum Hypericum canariense Hypericum pe,:foratum Hypochaeris radicata Kochia scoparia Leucanthemum vulgare Linaria genistifolia ssp. dalmatica Linaria vulgaris Lolium multiflorum Mentha pulegium Mesembryanthemum CJystallinum Myoporum laetum Nicotiana glauca Oxalis pes-caprae Pennisetum setaceum Phalaris aquatica Potamogeton crispus Retama monosperma Rumex acetosella Sisymbrium irio Tori/is arvensis Trifolium hirtum Vinca major Vulpia myuros Washingtonia robusta C-3 COMMON NAME Australian fireweed Tasmanian blue gum carnation spurge tall fescue edible fig cutleaf geranium waxy mannagrass halogeton shortpod mustard common velvet grass Mediterranean barley Canary Island hypericum common St. John's wort rough catsear, hairy dandelion kochia ox-eye daisy Dalmation toadflax yellow toadflax Italian ryegrass pennyroyal crystalline iceplant myoporum tree tobacco yellow oxalis crimson fountaingrass hardinggrass curlyleaf pondweed bridal broom red sorrel, sheep sorrel London rocket hedgeparsley rose clover big periwinkle rattail fescue Mexican fan palm AppendixD PROPERTY ANALYSIS RECORD LAUREL TREE AVIARA PRESERVE ESTIMATE FOR LONG-TERM MANAGEMENT Prepared for: HELIX Environmental Planning, Inc. Prepared by: San Diego Habitat Conservancy Contact: Don Scoles or Connie Winterstein (619) 365-4839 October 20, 2021 ESTIMATE FOR LONG-TERM MANAGEMENT LAUREL TREE AVIARA PRESERVE, SAN DIEGO COUNTY, CALIFORNIA October 20, 2021 An Estimate for Long-term Management (ELM) has been prepared for HELIX Environmental Planning, Inc. on behalf of Aviara LP, a Delaware limited liability company (Project Proponent) for the Laurel Tree Aviara Preserve (Preserve). The Preserve is located in central portion of the City of Carlsbad, in northern San Diego County, California. This ELM includes Initial & Capital Tasks and Costs, as well as Annual Long-term Ongoing Tasks and Costs associated with managing the Preserve and the sensitive habitat and resources within the Preserve. Refer to Attachment A for a map of the Preserve. The costs were estimated utilizing an Excel spreadsheet adapted from Property Analysis Record (PAR) software and based on management experience. The complete ELM cost sheets are provided in Attachment B. San Diego Habitat Conservancy (SDHC) Senior Habitat Manager, Kathleen Pollett and Acquisition Program Manager, Connie Winterstein, conducted a site visit of the Preserve on August 17, 2021. The primary source used to prepare this ELM is the Laurel Tree Aviara Project Preserve Management Plan (HELIX, May 2019). In addition, the following documents were used in preparation of this ELM: • HELIX Environmental Planning, Inc. (2019). Biological Resources Letter Report for the Laurel Tree Aviara Project. September 27, 2019. • HELIX Environmental Planning, Inc. (2019). Laurel Tree Aviara Apartments Project Restoration Plan. March 2019. • KTGY Architecture + Planning, GMP Landscape Architecture & Planning, and REC Consultants, Inc. (2020). Aviara Apartments Conceptual Design. January 24, 2020. Primary SDHC staff who will perform Preserve Manager (PM) duties meet the minimum requirements for the Preserve Manager as described in the Preserve Management Plan (PMP). The ELM has been organized into the following categories: • Open Space Property Description • Initial & Capital Tasks and Costs • Annual Long-term Ongoing Tasks and Costs • Financial Summary • Additional Assumptions OPEN SPACE PROPERTY DESCRIPTION The 1.6-acre Laurel Tree Aviara Preserve will serve as mitigation land for impacts to southern willow scrub and Diegan coastal sage scrub (DCSS) habitat from the development of the Aviara Apartments Project (Project). Restoration activities will occur on 1.1 acres within the Preserve. The Preserve will permanently protect high quality habitat suitable for southern willow scrub and DCSS species, and is within the boundaries of the City of Carlsbad (City) Habitat Management Plan (HMP). The Preserve is located north of Laurel Tree Lane, south of Palomar Airport Road, and on both sides of Aviara Parkway. Two plant species listed as special-status by the California Native Plant Society were confirmed adjacent to the project site. A single southwestern spiny rush (Juncus acutus ssp. leopoldii) individual Laurel Tree Aviara Preserve ELM October 20, 2021 1 was mapped along water's edge of southern willow scrub habitat off site to the northeast of the project site. In addition, fourteen individuals of San Diego marsh elder (Iva hayesiana) were mapped in the same vicinity. No special status wildlife species have been observed on site. The 1.1-acre restoration area is divided into three main areas in the western, northwestern, and northeastern portion of the site with four (4) different restoration treatment types, including: • Diegan Coastal Sage Scrub Creation/Substantial Restoration (0.23 Acre) • Diegan Coastal Sage Scrub Restoration-Riparian Buffer (0.64 Acre) • Diegan Coastal Sage Scrub Restoration-Maintained Low Fuel Native Scrub (0.23 Acre) • Diegan Coastal Sage Scrub Restoration-Maintained 50% Succulent Native Scrub (0.02 Acre) Invasive plant species of particular concern in the Preserve include but are not limited to oats (Avena sp.), foxtail chess (Bromus madritensis), pampas grass (Cortaderia selloana), fountain grass (Pennisetum setaceum), bull thistle (Cirsium vulgare), Russian thistle (Sa/so/a tragus), ice plant (Mesembryanthemum nodiflorum), eucalyptus (Eucalyptus sp.), palm (Washingtonia robusta), and black mustard (Brassica nigra). Portions of several existing easements overlap the Preserve east of Aviara Parkway, including a City temporary construction easement, City water pipeline easement, and SDG&E utility easement. Within the western area of the Preserve, there is an approximately 0.28 acre that is sloped, has minimal vegetation, and is currently not included in the Laurel Tree Aviara Apartments Project Restoration Plan (HELIX, 2019). SDHC assumes that during the five-year restoration period, the Project Proponent will conduct additional restoration, erosion control, and invasive species removal on the 0.28 acre area. It is assumed that SDHC will commence long-term management in 2027, after the Project Proponent completes the restoration requirements and sign-off is obtained by the City. Restoration activities are estimated to begin in 2022 and completed in 2027. SDHC will coordinate with Project Proponent's restoration contractor, as needed, and review the annual mitigation and monitoring reports prepared by Project Proponent's restoration contractor during the five-year restoration period. This ELM assumes that the endowment and other costs for management are estimated to be funded in 2022. The Preserve will be conserved via a Restrictive Covenant (RC). In this ELM, it is assumed SDHC will be the long-term Habitat Manager of the Preserve. R&V Real Estate Services will hold fee title of the Preserve. During the first year of long-term management, SDHC will perform the tasks below in addition to those described under "Annual Long-term Ongoing Tasks and Costs." INITIAL & CAPITAL TASKS AND COSTS (Refer also to Attachment B.) Assumptions for Initial & Capital Tasks and Costs $18,522.43 1. Property Inspection. Prior to accepting responsibility for long-term management, the PM and Executive Director will conduct a property inspection to review the condition of the Preserve and compare it to the conditions described in the PMP, including the verification of the fence and sign installation and the condition of the Preserve in general with regard to invasive species, erosion, and trash. Laurel Tree Aviara Preserve ELM October 20, 2021 2 2. Baseline Biological Inventory. The quantity and quality of vegetation communities within the Preserve will be documented during the first year of active management. SDHC will establish their own database of the onsite biological resources as observed and create a vegetation map of baseline conditions. Photo documentation points will be established to be used year to year for a record of site conditions over time. At least four (4) photo documentation points are assumed to adequately provide an overview of site conditions included in the annual report. The RM will determine the location of these photo points based on field conditions. 3. Year 1 Non-Native Species Treatment and Control. Intensive treatment of non-native invasive plant species will be completed in Year 1 of active management. Within the 0.51 acre western area, there is an approximately 0.28 acre that is sloped and has minimal vegetation. SDHC assumes that during the five-year restoration period, the Project Proponent will conduct restoration, erosion control, and invasive species removal on the 0.28 acre area. SDHC assumes upon Year 1 of active management, the 0.28 acre area will be free of invasive plant species. Year 1 activities will include an intensive invasive species removal effort within the Preserve, excluding the 0.28 acre area. SDHC assumes this will require a crew of four (4), plus a supervisor for one (1), four-hour day, two (2) times throughout the year. After the intensive treatment and at the end of Year 1, the PM will complete a qualitative assessment of non-native plant species coverage. The goal for Year 1 will be to reduce living, non-native plant species coverage in the Preserve to 10 percent or less. Funding for non- native plant or pest species treatment and control outside the Preserve Area is not included in this estimate nor required. 4. Start-up Costs. This ELM includes operation costs associated with start-up, endowment processing, and accounting file setup. 5. Contingency of 12%. 6. Administrative cost of 16% for staff and 10% for subcontractors and supplies. ANNUAL LONG-TERM ONGOING TASKS AND COSTS (Refer also to Attachment B.) Assumptions for Ongoing Tasks and Costs $14,462.91 1. Quarterly Site Visits. The PM will perform quarterly monitoring site visits of the Preserve for patrolling and general Preserve checks. The PM will visually inspect the Preserve to estimate non-native plant species coverage, non-native pest infestations, general wildlife use, the overall health and vigor of the habitat, signs of unauthorized access, fencing and signage damage, vandalism, trash, and erosion damage. The PM will also visually inspect the Preserve for sign of pest infestation (e.g., Polyphagous shot hole borer). If detected, the PM will immediately report infestation to the Carlsbad HMP Preserve Steward. At least four (4) photo documentation stations will be mapped on an aerial photo using GPS equipment. SDHC will prepare a log report after each site visit and logs will be included in the Annual Report. 2. Annual General Biological Resources Survey. The PM will conduct an annual general biological resources survey, which may be conducted concurrently with a quarterly site Laurel Tree Aviara Preserve ELM October 20, 2021 3 visit. The annual general biological resources survey will be conducted by qualified personnel with demonstrated knowledge of local flora and fauna who will identify and map (with GPS coordinates) observations of any sensitive species onsite. 3. Unauthorized Access and Vandalism. During the quarterly site visits, the PM will visually inspect the Preserve for sings of unauthorized access, fencing and signage damage, and vandalism. The Laurel Tree Aviara development property owner will be responsible for maintaining fencing and signage. If damage to fencing or signage is observed, the PM will report damage to the property owner. The PM will report illegal trespass, vagrant use, vandalism, and other illegal activities to the Carlsbad Police Department. The Laurel Tree Aviara development owner will also inspect the Preserve for unauthorized uses of the Preserve and report vagrant use, vandalism, and other illegal activities to the Carlsbad Police Department. SDHC will not be responsible for maintaining any gates. 4. Trash Removal. The PM and maintenance crews will remove trash, as observed, during each site visit. Trash will also be regularly removed by the Laurel Tree Aviara development owner. Trash will be disposed of properly at offsite locations. 5. Erosion Monitoring and Management. During the monitoring visits, the PM will visually inspect the entire Preserve for areas susceptible to erosion damage. SDHC assumes revegetation and erosion control during the five-year restoration period will stabilize areas susceptible to erosion damage. Installation of erosion control devices, if necessary, will be completed by the PM during non-native plant species treatment events. Erosion control devices and installation will be limited to available contingency funding. 6. Five-Year Vegetation and Sensitive Species Mapping. Every five (5) years, the PM will include in the annual report an updated map depicting vegetation communities and sensitive species observed or otherwise detected during monitoring. 7. Non-Native Species Treatment and Control. Removal and treatment of non-native plant species rated as High or Moderate category species by the California Invasive Plant Council (Cal-I PC High and Moderate category species) will be treated twice a year during the rainy season, and will occur concurrently with the quarterly site visits when feasible. Regardless of listing as an invasive species or not, non-native species known by the scientific community to be locally invasive, in addition to Cal-lPC medium and high-risk species, will be controlled to minimize competition with native species. This ELM assumes a crew of four (4 ), plus a supervisor for one (1 ), four-hour day, two (2) times per year in order to treat non-native plant species onsite. The least toxic methods that provide effective control will be used (in order of preference: mechanical, organic herbicide, other herbicide). At the direction of the PM, invasive plants shall be treated with herbicides and left in place or removed and disposed of at an approved off-site location, such as the Waste Management facility at 5960 Reef Circle, Carlsbad, California. Invasive plants will be removed and disposed of off-site when flowering or producing seed. Invasive plants may be treated with herbicide and left in place if they are not flowering/producing seed, and are not growing directly adjacent to native plants. Herbicides may only be applied by a licensed pesticide applicator under the supervision of a qualified biologist. Funding for non-native plant or pest species treatment and control outside the Preserve Area is not included in this estimate nor required. Mowing and treatment of non-native grasses are not included as part of exotic species control efforts. Laurel Tree Aviara Preserve ELM October 20, 2021 4 8. Enforce Access Restrictions. The PM will enforce access rules during visits. The PM will allow access to the preserve for science, research, and volunteer habitat management (trash removal, invasive plant removal), at the discretion of the PM, and as long as these activities do not adversely affect the Preserve. Any volunteers conducting habitat management tasks will be supervised by the Preserve Manager or a qualified biologist. The Laurel Tree Aviara development owner will post appropriate signage. Each sign will identify that the property is protected habitat, provide contact information, and other pertinent information. Additionally, the PM will coordinate with adjacent residents as necessary to address any concerns or answer questions. Recreational use is not allowed. 9. Post-Fire Recovery. Fire management is the responsibility of the City of Carlsbad Fire Department. Post-fire recovery efforts from SDHC will be limited to available contingency funds. These efforts include visually inspecting the site for changes in non-native cover, pest infestations, and overall vigor of the habitat communities during regular maintenance and surveying activities to ensure that the habitat recovers to a healthy sustainable condition. If necessary, SDHC will coordinate with the City regarding post-fire recovery actions and implement appropriate adaptive management measures (such as installation of erosion control BMPs, invasive species control, or revegetating). SDHC will conduct post-fire habitat monitoring annually for up to five (5) years in accordance with the City post-fire recovery protocols. 10. Adaptive Management. The PM will perform ongoing evaluation each year to determine the need for adjusting management actions in response to new information and changing conditions. If the PM detects a change in conditions, they will assess the information and initiate, modify, or end a particular management strategy, if necessary. If there is a substantial decline in native species compared to the baseline or other apparent threats to habitat conditions are observed, remedial measures will be evaluated with the City and implemented on an as-needed basis. The PM will coordinate with local and regional monitoring and management entities, such as the Carlsbad HMP Preserve Steward and San Diego Management and Monitoring Program. If natural communities are altered to the degree that they can no longer support covered species that existed in Year 1 of active management, the PM will coordinate with wildlife agencies to determine if habitat restoration is warranted. Adaptive management measures will be limited to available contingency funds. 11. Five-Year Preserve Management Plan Update. SDHC will annually assess the overall managemenUmonitoring strategy (frequency, methods, priorities, etc.), and update the PMP every five (5) years as appropriate to meet the commitment to Carlsbad HMP conservation goals. A review of the goals and objectives of the PMP will also be conducted at that time. 12. Annual Report. SDHC will prepare one ( 1) annual report to summarize the status of the Preserve, monitoring survey results, and all major management tasks. The report will include the previous year's monitoring and maintenance activities and include managemenUmonitoring anticipated in the upcoming year. It shall provide a concise and complete summary of management and monitoring methods, identify new management issues, address management issues raised in the previous year's report, report on the success or failure of management approaches (based on monitoring), and every fifth year it shall include updated mapping of vegetation and sensitive species. The report will also outline appropriate remedial measures for those approaches not yielding satisfactory results and include a summary of changes from baseline or previous Laurel Tree Aviara Preserve ELM October 20, 2021 5 year conditions and any areas of increased trespass or dumping. The report will address the need for any adaptive management resulting from previous monitoring and provide a methodology for measuring the success of any new or modified maintenance and/or monitoring measures. The report will also provide a financial summary describing expenditures for the year and the status of the endowment. A discussion of projected versus actual costs, and an accounting of the endowment including the original endowment amount, current status of the endowment, interest earned, and projected and actual annual costs will also be provided. Photos from the photo monitoring stations will be attached to the report. The report will be provided to the City following the first year of management and annually thereafter in October. SDHC will maintain mapping of vegetation, sensitive resource data, and non-native species in a digital (GIS) format and will provide the GIS data to the City annually unless there has been no change from the previous year, but at least every five (5) years. During years with no change, the PM will notify the City that no GIS data will be provided for that year. The PM will maintain photo documentation of the site digitally and provide digital photos to the City every five (5) years, if not already submitted with annual reports. 13. Database Management. SDHC will establish and annually update the file management system, including hard files, electronic files, and GIS mapping, and coordinate with the San Diego Foundation regarding the endowment. 14. General Coordination. The PM will coordinate with the landowner, City, the Carlsbad HMP Preserve Steward, other preserve managers, local volunteer groups, resource agencies, and adjacent businesses. The Preserve Manager will participate in the annual public workshop for HMP implementation hosted by the City. 15. Contingency of 12%. 16. Administrative cost of 16% for staff and 10% for subcontractors and supplies. FINANCIAL SUMMARY Initial Financial Requirements1 Annual Ongoing Financial Requirements - Endowment to Provide Income of 2· 3 Emergency and Legal Fund (4%)4 Includes Costs for Years 1, 2, and 3 $14,462.91 $14,462.91 TOTAL CONTRIBUTION $52,226.93 $246,255.65 $9,850.23 $308,332.81 2 3 Assumes a 4.25% capitalization rate and that the endowment will be held by The San Diego Foundation. Assumes the total contribution will be paid in 2021 or 2022. The l&C will be utilized for the first three years of long- term stewardship (2027-2029) and the returns from the endowment will start being used to support stewardship tasks in Year 4 (2030). 4 Emergency and Legal Fund will be used at SDHC's Board of Directors' discretion in case of an emergency event or if legal enforcement or defense is needed, and considering any recommendations by the City. Laurel Tree Aviara Preserve ELM October 20, 2021 6 ADDITIONAL ASSUMPTIONS 1. Site Preparation. The conservation values will be intact prior to the start of long-term management by SDHC. SDHC assumes that the Preserve will be free of trash or debris. All cleanup costs associated with dumping or littering prior to active management are the responsibility of the Project Proponent. 2. Access. The landowner will provide SDHC with permanent, legal, and unobstructed access to the Preserve for monitoring and management purposes. Since the Project Proponent will not install fencing around the entire perimeter of the Preserve, SDHC assumes access points will be available along the unfenced areas. 3. Fencing and Signage. The Project Proponent will install fencing and signage along the northeastern, northwestern, and western areas of the Preserve prior to the start of long-term management by SDHC. The Laurel Tree Aviara development owner will be responsible for maintaining fencing and signage in perpetuity. 4. Updated Title Report. The legal description and preliminary title report of the Preserve area only is not available at this time. It is assumed any exemptions or existing easements will not impact management of the Preserve and this ELM, though upon receipt of the preliminary title report of the Preserve Area, this ELM may need to be reassessed. 5. Existing Easements. Portions of several existing easements overlap the Preserve east of Aviara Parkway, including a City temporary construction easement, City water pipeline easement, and SDG&E utility easement. SDCH is not responsible for maintenance or monitoring of these easements. 6. Fire Management. No fuel modification zones are included within the Preserve and SDHC will not be responsible for any brush management. Fire management and recovery efforts will be limited to contingency funds. 7. Erosion Control. During the five-year restoration period, erosion control will be conducted in restoration areas by the Proponent, including installing construction and silt fencing prior to grading on the north and west side. SDHC assumes once vegetation is established, erosion control materials (e.g., fiber rolls and matting) will not be required. 8. Restoration Materials. The Proponent will remove the silt fencing and any other temporary non-biodegradable restoration equipment/supplies (e.g. flags and PVC pipe) prior to active management by SDHC. 9. Retaining Walls. SDCH is not responsible for managing or maintaining retaining walls that abut the Preserve. 10. Flood Control. Any damage to the Preserve caused by floods, especially within and adjacent to Encinas Creek, will be allowed to recover naturally. Any control or recovery efforts will be limited to contingency funds. 11. Trails and Roads. SDHC is not responsible for managing or maintaining any trails or roads abutting the Preserve. 12. Boundaries. The boundaries of the Preserve are known and reasonably identifiable in the field. It is assumed that if surveying or resurveying is needed, this will be an expense incurred Laurel Tree Aviara Preserve ELM October 20, 2021 7 by the Project Proponent. In the instance a portion of the Preserve is not fenced, the Project Proponent will place stakes where the boundaries occur. 13. Existing Documentation. Project Proponent will make available to SDHC all biological resource vegetation maps, sensitive plant maps, and digital files associated with biological resource surveys of the Preserve and stake the boundary of the Preserve prior to SDHC starting long-term management. The Project Proponent shall provide SDHC a digital base map with topography, data points, and boundary staking points. 14. Transaction Costs. This estimate does not include the costs associated with SDHC's review of legal documents, including but not limited to: Covenant of Easement, Title Reports, Operating Agreements, Access Agreements, or Deeds. Review and comment on applicable documents will be performed under a separate contract prior to SDHC taking responsibility for long-term habitat management. 15. Timeframe. The terms and conditions of this ELM are valid for a period of six (6) months from the date of this ELM. The time lag between this ELM and the establishment of the endowment may influence final management costs. If the timeframe to establish the endowment exceeds six (6 months from the date of this ELM, SDHC will coordinate with the Project Proponent to determine if any revisions to this ELM are necessary. Laurel Tree Aviara Preserve ELM October 20, 2021 8 ATTACHMENT A Preserve Maps -For Reference Figure 4 -Proposed HMP Preserve Figure 5 -Proposed HMP Preserve Restoration, Maintenance, Conceptual Fencing and Signage Figure 6 -Preserve HMP Restoration, Mainte·nance, Conceptual Fencing and Signage ATTACHMENT B Initial Costs -for Reference .. Financial Summary PROPERTY: Aviara Apartments Preserve LAST UPDATED: 09/23/2021 Acreage = 1.60 Initial Year Ongoing Contingency Rate = 12% Contingency $ 1,769.40 $ 1,379.64 Administrative Rate (Staff) = 16% Administrative $ 2,008.03 $ 1,586.27 Administrative Rate (Subs & Materials)= 10% COSTS PER YEAR TOTAL($) Initial & Capital Costs for Year 1 at 2021 rates $ 18,522.43 Annual Ongoing Costs per Year after Year 1 at 2021 rates $ 14,462.91 TOTAL INITIAL FINANCIAL REQUIREMENTS Initial & Capital Costs for Year 1 (2027 projected costs with inflation) $ 22,116.75 Annual Ongoing Costs for Year 2 (2028 projected costs with inflation) $ 16,766.48 Annual Ongoing Costs for Year 3 (2029 projected costs with inflation) $ 17,269.47 Initial Financial Requirements for Years 1, 2,3 $ 56,152.70 Present Value Factor $ (3,925.77) Total Present Value Funding Requirement $ 52,226.93 ENDOWMENT REQUIREMENTS FOR ONGOING STEWARDSHIP* Endowment to Provide Income of $ 14,462.91 at Cap. Rate of 4.25% $ 340,303.81 Present Value Factor for Funding Endowment 5 Years in Advance $ (94,048.16) Endowment Requirement to Provide Ongoing Management Costs at Cap. Rate of 4.25% $ 246,255.65 EMERGENCY & LEGAL FUND 4% of Endowment $ 9,850.23 TOTAL CONTRIBUTION (Initial Financial Requirements for Years 1,2,3 + Endowment+ Emergency & Legal Fund) $ 308,332.81 * Endowment funding estimated to be in 2021. Returns from the endowment will start being used to support stewardship tasks in Management Year 4 (2030) . EXHIBIT D Title Report Order Number: NCS-1096741-SD Page Number: 1 Updated and Amended March 29, 2022 .._1 ,\\lf;ll,. ,+' c•.., ~--First American Title Insurance Company March 29, 2022 CHRIS SCHOENECK Wermers Companies 5120 Shoreham Place, #150 San Diego, CA 92122 Phone: Fax: Customer Reference: Title Officer: Phone: Fax No.: E-Mail: Buyer: Property: National Commercial Services 4380 La Jolla Village Drive, Suite 110 San Diego, CA 92122 6145 Laurel Tree Road Linda Slavik (858)410-3900 (877)461-2093 lslavik@firstam.com 6145 Laurel Tree Lane, Carlsbad, CA PRELIMINARY REPORT In response to the above referenced application for a policy of title insurance, this company hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms. The printed Exceptions and Exclusions from the coverage and Limitations on Covered Risks of said policy or policies are set forth in Exhibit A attached. The policy to be issued may contain an arbitration clause. When the Amount of Insurance is less than that set forth in the arbitration clause, all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties. Limitations on Covered Risks applicable to the Cl TA and AL TA Homeowner's Policies of Title Insurance which establish a Deductible Amount and a Maximum Dollar Limit of Liability for certain coverages are also set forth in Exhibit A. Copies of the policy forms should be read. They are available from the office which issued this report. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. First American Title Insurance Company Order Number: NCS-1096741-SD Page Number: 2 It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects, and encumbrances affecting title to the land. This report ( and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a pol icy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or Commitment should be requested. First American Title Insurance Company 1. 2. 3. 4. 5. Dated as of March 24, 2022 at 7:30 A.M. The form of Policy of title insurance contemplated by this report is: To Be Determined Order Number: NCS-1096741-SD Page Number: 3 A specific request should be made if another form or additional coverage is desired. Title to said estate or interest at the date hereof is vested in: Aviara LP, a Delaware Limited Partnership The estate or interest in the land hereinafter described or referred to covered by this Report is: Fee Simple 1, as easement as to Parcel 2 The Land referred to herein is described as follows: (See attached Legal Description) At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in said policy form would be as follows: General and special taxes and assessments for the fiscal year 2021-2022. First Installment: $10,886.99, PAID Penalty: $0.00 Second Installment: $10,886.99, OPEN Penalty: $0.00 Tax Rate Area: 09018 A. P. No.: 212-040-56-00 The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code. An easement for either or both pole lines, underground conduits together with the right of ingress and egress and incidental purposes, recorded August 14, 1957 as Book 6706, Page 514 of Official Records. In Favor of: Affects: San Diego Gas and Electric Company as described therein The effect of a map purporting to show the land and other property, filed 5715 of Record of Surveys. An easement shown or dedicated on the map filed or recorded December 19, 1960 as Book of Record of Survey Map No. 5715 For: Road and incidental purposes. First American Title Insurance Company 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Order Number: NCS-1096741-SD Page Number: 4 An easement and right of way for road way, utility and incidental purposes as reserved by instrument recorded February 2, 1961 as File No. 18947 of Official Records, and the right of others to use said easement as conveyed or reserved in various other instruments of record, over, under, along and across that portion of said land herein described lying within that certain strip of land designated, "60 foot easement reserved for roadway and utility purposes" on Record of Survey No. 5715. An easement for water pipe lines and incidental purposes, recorded December 28, 1961 as Instrument No. 223207 of Official Records. In Favor of: Carlsbad Municipal Water District Affects: as described therein An easement for transmission and distribution of electricity together with the right of ingress and egress and incidental purposes, recorded September 12, 1967 as Instrument No. 138908 of Official Records. In Favor of: Affects: San Diego Gas and Electric Company, a Corporation as described therein This item has been intentionally deleted. The terms and provisions contained in the document entitled Agreement, executed by and between Frazee Properties Carlsbad, a California Limited Partnership, Richard C. Kelly and Robert Patrick Kelly as Trustees of the Kelly Family Trust UDT dated November 25, 1985 and Davidson Communities, Inc., a California Corporation, recorded November 29, 1988, as Instrument No. 88-608758 of Official Records. This item has been intentionally deleted. This item has been intentionally deleted. This item has been intentionally deleted. The fact that the land lies within the boundaries of the Bridge and Thoroughfare District No. 2 (Aviara Parkway-Poinsettia Lane) Redevelopment Project Area, as disclosed by the document recorded July 22, 1997 as Instrument No. 349124 of Official Records. An easement for either underground electrical and communication conduits together with the right of ingress and egress and incidental purposes, recorded March 13, 1998 as Instrument No. 98- 138109 of Official Records. In Favor of: San Diego Gas and Electric Company Affects: as described therein The location of the easement cannot be determined from record information. 16. This item has been intentionally deleted. First American Title Insurance Company Order Number: NCS-1096741-SD Page Number: 5 17. An easement for public street, public utility and incidental purposes, recorded March 10, 2000 as Instrument No. 00-123723 of Official Records. In Favor of: City of Carlsbad, a municipal corporation Affects: as described therein 18. An easement for construction and maintenance of embankment slope for roadway support and incidental purposes, recorded March 10, 2000 as Instrument No. 00-123724 of Official Records. In Favor of: City of Carlsbad, a municipal corporation Affects: as described therein 19. This item has been intentionally deleted. 20. An easement for public street, public utility, drainage, slope and temporary construction and incidental purposes, recorded April 10, 2000 as Instrument No. 00-0180600 of Official Records. In Favor of: City of Carlsbad, a municipal corporation Affects: as described therein 21. An easement for public street and public utility purposes and incidental purposes, recorded September 21, 2001 as Instrument No. 01-0682746 of Official Records. In Favor of: City of Carlsbad, a municipal corporation Affects: as described therein 22. This item has been intentionally deleted. 23. Rights of the public in and to that portion of the Land lying within any Road, Street, or Highway. 24. Water rights, claims or title to water, whether or not shown by the Public Records. 25. Rights of parties in possession. 26. A Deed of Trust to secure an original indebtedness of $14,000,000.00 recorded December 16, 2021 as Instrument No. 2021-0848730 of Official Records. 27. 28. Dated: Trustor: Trustee: Beneficiary: November 23, 2021 Aviara LP, a Delaware limited partnership Fidelity National Title WFIC Platform, LLC, a California limited liability company An easement for public utilities and incidental purposes, recorded March 19, 1947 as Book 2365, Page 175 of Official Records. In Favor of: Affects: San Diego Gas and Electric Company as described therein The terms and provisions contained in the document entitled "Affordable Housing Agreement Imposing Restrictions on Real Property" recorded March 14, 2022 as Instrument No. 2022-0113227 of Official Records. First American Title Insurance Company INFORMATIONAL NOTES Order Number: NCS-1096741-SD Page Number: 6 ALERT -CA Senate Bill 2 imposes an additional fee of $75 up to $225 at the time of recording on certain transactions effective January 1, 2018. Please contact your First American Title representative for more information on how this may affect your closing. 1. According to the latest available equalized assessment roll in the office of the county tax assessor, there is located on the land a(n) Commercial Structure known as 6145 Laurel Tree Road, Carlsbad, CA. 2. According to the public records, there has been no conveyance of the land within a period of twenty four months prior to the date of this report, except as follows: A document recorded November 01, 2021 as Instrument No. 2021-759650 of Official Records. From: James Ukegawa, a Married Man as his sole and separate property To: Shae SC Laurel Tree LLC, a California Limited Liability Company A document recorded November 01, 2021 as Instrument No. 2021-759651 of Official Records. From: Shae SC Laurel Tree LLC, a California Limited Liability Company To: Aviara LP, a Delaware Limited Partnership 3. This preliminary report/commitment was prepared based upon an application for a policy of title insurance that identified land by street address or assessor's parcel number only. It is the responsibility of the applicant to determine whether the land referred to herein is in fact the land that is to be described in the policy or policies to be issued. 4. Should this report be used to facilitate your transaction, we must be provided with the following prior to the issuance of the policy: A. WITH RESPECT TO A CORPORATION: 1. A certificate of good standing of recent date issued by the Secretary of State of the corporation's state of domicile. 2. A certificate copy of a resolution of the Board of Directors authorizing the contemplated transaction and designating which corporate officers shall have the power to execute on behalf of the corporation. 3. A certificate of revivor and a certificate of relief from contract voidability issued by the Franchise Tax Board of the State of California. 4. Requirements which the Company may impose following its review of the above material and other information which the Company may require. B. WITH RESPECT TO A CALIFORNIA LIMITED PARTNERSHIP: 1. A certified copy of the certificate of limited partnership (form LP-1) and any amendments thereto (form LP-2) to be recorded in the public records; 2. A full copy of the partnership agreement and any amendments; 3. Satisfactory evidence of the consent of a majority in interest of the limited partners to the contemplated transaction; 4. A certificate of revivor and a certificate of relief from contract voidability issued by the Franchise Tax Board of the State of California. 5. Requirements which the Company may impose following its review of the above material and other information which the Company may require. C. WITH RESPECT TO A FOREIGN LIMITED PARTNERSHIP: First American Title Insurance Company Order Number: NCS-1096741-SD Page Number: 7 1. A certified copy of the application for registration, foreign limited partnership (form LP-5) and any amendments thereto (form LP-6) to be recorded in the public records; 2. A full copy of the partnership agreement and any amendment; 3. Satisfactory evidence of the consent of a majority in interest of the limited partners to the contemplated transaction; 4. A certificate of revivor and a certificate of relief from contract voidability issued by the Franchise Tax Board of the State of California. 5. Requirements which the Company may impose following its review of the above material and other information which the Company may require. D. WITH RESPECT TO A GENERAL PARTNERSHIP: 1. A certified copy of a statement of partnership authority pursuant to Section 16303 of the California Corporation Code (form GP-I), executed by at least two partners, and a certified copy of any amendments to such statement (form GP-7), to be recorded in the public records; 2. A full copy of the partnership agreement and any amendments; 3. Requirements which the Company may impose following its review of the above material required herein and other information which the Company may require. E. WITH RESPECT TO A LIMITED LIABILITY COMPANY: 1. A copy of its operating agreement and any amendments thereto; 2. If it is a California limited liability company, a certified copy of its articles of organization (LLC-1) and any certificate of correction (LLC-11), certificate of amendment (LLC-2), or restatement of articles of organization (LLC-10) to be recorded in the public records; 3. If it is a foreign limited liability company, a certified copy of its application for registration (LLC-5) to be recorded in the public records; 4. With respect to any deed, deed of trust, lease, subordination agreement or other document or instrument executed by such limited liability company and presented for recordation by the Company or upon which the Company is asked to rely, such document or instrument must be executed in accordance with one of the following, as appropriate: (i) If the limited liability company properly operates through officers appointed or elected pursuant to the terms of a written operating agreement, such documents must be executed by at least two duly elected or appointed officers, as follows: the chairman of the board, the president or any vice president, and any secretary, assistant secretary, the chief financial officer or any assistant treasurer; (ii) If the limited liability company properly operates through a manager or managers identified in the articles of organization and/or duly elected pursuant to the terms of a written operating agreement, such document must be executed by at least two such managers or by one manager if the limited liability company properly operates with the existence of only one manager. 5. A certificate of revivor and a certificate of relief from contract voidability issued by the Franchise Tax Board of the State of California. 6. Requirements which the Company may impose following its review of the above material and other information which the Company may require. F. WITH RESPECT TO A TRUST: 1. A certification pursuant to Section 18100.5 of the California Probate Code in a form satisfactory to the Company. 2. Copies of those excerpts from the original trust documents and amendments thereto which designate the trustee and confer upon the trustee the power to act in the pending transaction. 3. Other requirements which the Company may impose following its review of the material require herein and other information which the Company may require. G. WITH RESPECT TO INDIVIDUALS: 1. A statement of information. The map attached, if any, may or may not be a survey of the land depicted hereon. First American Title Insurance Company expressly disclaims any liability for loss or damage which may result from reliance on First American Title Insurance Company Order Number: NCS-1096741-SD Page Number: 8 this map except to the extent coverage for such loss or damage is expressly provided by the terms and provisions of the title insurance policy, if any, to which this map is attached. *****To obtain wire instructions for deposit of funds to your escrow file please contact your Escrow Officer.***** First American Title Insurance Company LEGAL DESCRIPTION Order Number: NCS-1096741-SD Page Number: 9 Real property in the City of Carlsbad, County of San Diego, State of California, described as follows: PARCEL 1: THAT CERTAIN PORTION OF LOT "G" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER COMMON TO PARCELS "B" AND "C" OF PARCEL MAP NO. 2993, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF SAID PARCEL "C", NORTH 73°25'32" EAST, 218.15 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 800.00 FEET; THENCE LEAVING SAID SOUTHERLY LINE, EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 22°52'27" AN ARC LENGTH OF 319.38 FEET; THENCE TANGENT TO SAID CURVE SOUTH 83°42'01" EAST, 254.06 FEET; THENCE SOUTH 81 °37'46" EAST, 525.00 FEET TO A POINT IN THE SOUTHWESTERLY EXTENSION OF THE SOUTHEASTERLY LINE OF PARCEL "D" OF SAID PARCEL MAP NO. 2993; THENCE SOUTHWESTERLY ALONG SAID EXTENSION SOUTH 13°36'43" WEST, 114.38 FEET; THENCE SOUTH 71°35'51" WEST, 1165.74 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL "B"; THENCE NORTHWESTERLY ALONG THE NORTHEAST LINE OF SAID PARCEL "B" NORTH 18°24'09" WEST, 519.41 FEET TO THE POINT OF BEGINNING. PARCEL 2: AN EASEMENT AND RIGHT OF WAY FOR ROAD AND PUBLIC UTILITY PURPOSES OVER ALL THAT PORTION OF PARCEL D OF PARCEL MAP NO. 2993, AND A PORTION OF LOT "G" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHEASTERLY CORNER OF SAID PARCEL D; THENCE SOUTH 13°36'43" WEST ALONG THE EASTERLY LINE THEREOF, 13.01 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 13°36'43" WEST, ALONG SAID EASTERLY BOUNDARY AND THE SOUTHERLY PROLONGATION THEREOF, 531.99 FEET; THENCE NORTH 81°37'46" WEST 30.13 FEET; THENCE NORTH 13°36'43" EAST 533.43 FEET TO A POINT ON THE NORTHERLY LINE OF SAID PARCEL MAP; THENCE ALONG SAID NORTHERLY LINE, SOUTH 78°54'09" EAST 30.03 TO THE TRUE POINT OF BEGINNING. APN: 212-040-56-00 First American Title Insurance Company The First American Corporation First American Title Company Privacy Policy We Are Committed to Safeguarding Customer Information Order Number: NCS-1096741-5D Page Number: 10 In order to better serve your needs now and in the future, we may ask you to provide us with certain information. We understand that you may be concerned about what we will do with such information - particularly any personal or financial information. We agree that you have a right to know how we will utilize the personal information you provide to us. Therefore, together with our parent company, The First American Corporation, we have adopted this Privacy Policy to govern the use and handling of your personal information. Applicability This Privacy Policy governs our use of the information which you provide to us. It does not govern the manner in which we may use information we have obtained from any other source, such as information obtained from a public record or from another person or entity. First American has also adopted broader guidelines that govern our use of personal information regardless of its source. First American calls these guidelines its Fair Information Values, a copy of which can be found on our website at www.firstam.com. Types of Information Depending upon which of our services you are utilizing, the types of nonpublic personal information that we may collect include: Information we receive from you on applications, forms and in other communications to us, whether in writing, in person, by telephone or any other means; Information about your transactions with us, our affiliated companies, or others; and Information we receive from a consumer reporting agency. Use of Information We request information from you for our own legitimate business purposes and not for the benefit of any nonaffiliated party. Therefore, we will not release your information to nonaffiliated parties except: (1) as necessary for us to provide the product or service you have requested of us; or (2) as permitted by law. We may, however, store such information indefinitely, including the period after which any customer relationship has ceased. Such information may be used for any internal purpose, such as quality control efforts or customer analysis. We may also provide all of the types of nonpublic personal information listed above to one or more of our affiliated companies. Such affiliated companies include financial service providers, such as title insurers, property and casualty insurers, and trust and investment advisory companies, or companies involved in real estate services, such as appraisal companies, home warranty companies, and escrow companies. Furthermore, we may also provide all the information we collect, as described above, to companies that perform marketing services on our behalf, on behalf of our affiliated companies, or to other financial institutions with whom we or our affiliated companies have joint marketing agreements. Former Customers Even if you are no longer our customer, our Privacy Policy will continue to apply to you. Confidentiality and Security We will use our best efforts to ensure that no unauthorized parties have access to any of your information. We restrict access to nonpublic personal information about you to those individuals and entities who need to know that information to provide products or services to you. We will use our best efforts to train and oversee our employees and agents to ensure that your information will be handled responsibly and in accordance with this Privacy Policy and First American's Fair Information Values. We currently maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal information. First American Title Insurance Company Order Number: NCS-1096741-SD Page Number: 11 CLTA/ ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE (02-03-10) EXCLUSIONS In addition to the Exceptions in Schedule B, You are not insured against loss, costs, attorneys' fees, and expenses resulting from: 1. Governmental police power, and the existence or violation of those portions of any law or government regulation concerning: (a) building; (d) improvements on the Land; (b) zoning; (e) land division; and (c) land use; (f) environmental protection. This Exclusion does not limit the coverage described in Covered Risk 8.a., 14, 15, 16, 18, 19, 20, 23 or 27. 2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes. This Exclusion does not limit the coverage described in Covered Risk 14 or 15. 3. The right to take the Land by condemning it. This Exclusion does not limit the coverage described in Covered Risk 17. 4. Risks: (a) that are created, allowed, or agreed to by You, whether or not they are recorded in the Public Records; (b) that are Known to You at the Policy Date, but not to Us, unless they are recorded in the Public Records at the Policy Date; (c) that result in no loss to You; or (d) that first occur after the Policy Date -this does not limit the coverage described in Covered Risk 7, 8.e., 25, 26, 27 or 28. 5. Failure to pay value for Your Title. 6. Lack of a right: (a) to any land outside the area specifically described and referred to in paragraph 3 of Schedule A; and (b) in streets, alleys, or waterways that touch the Land. This Exclusion does not limit the coverage described in Covered Risk 11 or 21. 7. The transfer of the Title to You is invalid as a preferential transfer or as a fraudulent transfer or conveyance under federal bankruptcy, state insolvency, or similar creditors' rights laws. LIMITATIONS ON COVERED RISKS Your insurance for the following Covered Risks is limited on the Owner's Coverage Statement as follows: For Covered Risk 16, 18, 19, and 21 Your Deductible Amount and Our Maximum Dollar Limit of Liability shown in Schedule A. Your Deductible Amount Covered Risk 16: 1 % of Policy Amount or $2,500.00 (whichever is less) Covered Risk 18: 1 % of Policy Amount or $5,000.00 (whichever is less) Covered Risk 19: 1 % of Policy Amount or $5,000.00 (whichever is less) Covered Risk 21: 1 % of Policy Amount or $2,500.00 (whichever is less) our Maximum Dollar Limit of Liability $10,000.00 $25,000.00 $25,000.00 $5,000.00 ALTA RESIDENTIAL TITLE INSURANCE POLICY (6·1-87) EXCLUSIONS In addition to the Exceptions in Schedule B, you are not insured against loss, costs, attorneys' fees, and expenses resulting from: 1. Governmental police power, and the existence or violation of any law or government regulation. This includes building and zoning ordinances and also laws and regulations concerning: (a) and use (b) improvements on the land (c) and division (d) environmental protection This exclusion does not apply to violations or the enforcement of these matters which appear in the public records at Policy Date. This exclusion does not limit the zoning coverage described in Items 12 and 13 of Covered Title Risks. 2. The right to take the land by condemning it, unless: (a) a notice of exercising the right appears in the public records on the Policy Date (b) the taking happened prior to the Policy Date and is binding on you if you bought the land without knowing of the taking 3. Title Risks: (a) that are created, allowed, or agreed to by you (b) that are known to you, but not to us, on the Policy Date --unless they appeared in the public records First American Title Insurance Company Order Number: NCS-1096741-SD Page Number: 12 (c) that result in no loss to you (d) that first affect your title after the Policy Date --this does not limit the labor and material lien coverage in Item 8 of Covered Title Risks 4. Failure to pay value for your title. 5. Lack of a right: (a) to any land outside the area specifically described and referred to in Item 3 of Schedule A OR (b) in streets, alleys, or waterways that touch your land This exclusion does not limit the access coverage in Item 5 of Covered Title Risks. 2006 ALTA LOAN POLICY (06-17-06) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: 1. a. Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to i. the occupancy, use, or enjoyment of the Land; ii. the character, dimensions, or location of any improvement erected on the Land; iii. the subdivision of land; or iv. environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion l(a) does not modify or limit the coverage provided under Covered Risk 5. b. Any governmental police power. This Exclusion l(b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters a. created, suffered, assumed, or agreed to by the Insured Claimant; b. not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; c. resulting in no loss or damage to the Insured Claimant; d. attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 13, or 14); or e. resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing-business laws of the state where the Land is situated. 5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury or any consumer credit protection or truth-in-lending law. 6. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction creating the lien of the Insured Mortgage, is a. a fraudulent conveyance or fraudulent transfer, or b. a preferential transfer for any reason not stated in Covered Risk 13(b) of this policy. 7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the Insured Mortgage in the Public Records. This Exclusion does not modify or limit the coverage provided under Covered Risk 11(b). The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) that arise by reason of: 1. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 2. Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 3. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 4. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. First American Title Insurance Company 6. Any lien or right to a lien for services, labor or material not shown by the public records. 2006 ALTA OWNER'S POLICY (06-17-06) EXCLUSIONS FROM COVERAGE Order Number: NCS-1096741-SD Page Number: 13 The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: 1. a. Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to i. the occupancy, use, or enjoyment of the Land; ii. the character, dimensions, or location of any improvement erected on the Land; iii. the subdivision of land; or iv. environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion l(a) does not modify or limit the coverage provided under Covered Risk 5. b.Any governmental police power. This Exclusion l(b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters a. created, suffered, assumed, or agreed to by the Insured Claimant; b. not Known to the Company, not recorded in the Public Records at Date of Policy, but known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; c. resulting in no loss or damage to the Insured Claimant; d. attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 9 and 10); or e. resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title. 4. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction vesting the Title as shown in Schedule A, is a. a fraudulent conveyance or fraudulent transfer; or b. a preferential transfer for any reason not stated in Covered Risk 9 of this policy. 5. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) that arise by reason of: 1. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 2. Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 3. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 4. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 6. Any lien or right to a lien for services, labor or material not shown by the public records. First American Title Insurance Company Order Number: NCS-1096741-SD Page Number: 14 ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (07-26-10) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: 1. a. Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to i. the occupancy, use, or enjoyment of the Land; ii. the character, dimensions, or location of any improvement erected on the Land; iii. the subdivision of land; or iv. environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion l(a) does not modify or limit the coverage provided under Covered Risk 5, 6, 13(c), 13(d), 14 or 16. b. Any governmental police power. This Exclusion l(b) does not modify or limit the coverage provided under Covered Risk 5, 6, 13( c), 13( d), 14 or 16. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters a. created, suffered, assumed, or agreed to by the Insured Claimant; b. not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under th is policy; c. resulting in no loss or damage to the Insured Claimant; d. attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27 or 28); or e. resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing-business laws of the state where the Land is situated. 5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury or any consumer credit protection or truth-in-lending law. This Exclusion does not modify or limit the coverage provided in Covered Risk 26. 6. Any claim of invalidity, unenforceability or lack of priority of the lien of the Insured Mortgage as to Advances or modifications made after the Insured has Knowledge that the vestee shown in Schedule A is no longer the owner of the estate or interest covered by this policy. This Exclusion does not modify or limit the coverage provided in Covered Risk 11. 7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching subsequent to Date of Policy. This Exclusion does not modify or limit the coverage provided in Covered Risk ll(b) or 25. 8. The failure of the residential structure, or any portion of it, to have been constructed before, on or after Date of Policy in accordance with applicable building codes. This Exclusion does not modify or limit the coverage provided in Covered Risk 5 or 6. 9. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction creating the lien of the Insured Mortgage, is a. a fraudulent conveyance or fraudulent transfer, or b. a preferential transfer for any reason not stated in Covered Risk 27(b) of this policy. First American Title Insurance Company